§ 3.5 p.m
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
§ Moved, That the House do now again resolve itself into Committee.—(The Lord Chancellor.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The LORD ABERDARE in the Chair.]
§ Clause 14 [Availability of and payment for, representation under this Part]:
Lord Elwyn-Jones moved Amendment No. 34B:
Page 11 Line 15, at end insert—
("(1) Representation shall always be granted to any child who is a party to the proceedings.").
§ The noble and learned Lord said: I have been asked by my noble friend Lord Mishcon to move this important amendment, which arises from the provisions of Clause 14 of the Bill relating to availability of and payment for representation under Part IV of the Bill dealing with civil legal aid. It may be convenient to also discuss a somewhat parallel provision arising from Amendment No. 43C relating to the arrangements for children brought before a juvenile court. Amendment No. 43C provides that 85 legal aid shall be available to any child who is a party to those proceedings. If it is not convenient to take them together, so be it, but if it is convenient that course might be followed.
§ The Lord Chancellor
So long as the Committee keeps in mind that the subject matter of Clause 26 and Amendment No. 43C is rather different from this amendment, if it suits the noble and learned Lord, as it seems to do, to take these together it would be churlish of me to offer any objection.
§ Lord Elwyn-Jones
In view of what the noble and learned Lord has said, it may be that it will add an element of confusion, so we will take it in turn when we reach it. I was merely hoping to save a little time, but in the long run it may not have that effect.
I come now to the very important Amendment No. 34B, which states:Representation shall always be granted to any child who is a party to the proceedings".The purpose of the amendment is to ensure that, where a child is made a party to any proceedings, the child shall always be granted legal aid and be represented in such proceedings. We are very much concerned with the family field of provision for children in care and children involved in other family proceedings.
Over the past ten years there has been much discussion and a great deal of reviewing and changing in that sphere. One such review was contained in the Government's White Paper entitled The Law on Child Care and Family Services, which is 1987 Command Paper 62. In addition to that White Paper, the Law Commission has also engaged in a review of child law. The White Paper to which I have referred states:There is a considerable volume of work with families to prevent or diminish the need to take children into local authority care and otherwise to support families, for example through daycare and domicilary services. There has been growing concern that the law governing all these services is confused and unnecessarily complex".The services referred to there often—almost invariably—concern a child, and where a child is involved in court proceedings by now the proposition is not only asserted but accepted and established that what is paramount is the interests of the child. It has been increasingly recognised that where important decisions are being made about a child and its life and future the child should he made a party to the proceedings. Such decisions include cases where a child is taken into care and separated from his or her family; whether parents should continue to have access to a child in care or where a child is the subject of wardship proceedings.
Making a child a party to the proceedings—as the child in such cases should be made and will normally be made—has little meaning unless the child is legally represented. In some proceedings the court may appoint a guardian ad litem to safeguard the interests of the child. This does not necessarily mean that the child will be legally represented in the court proceedings unless the court or the guardian in question appoints a solicitor to act on behalf of the child.
86 The purpose of this important amendment is to specify that in such circumstances a child should always have legal representation and that that should be given under the aegis of the legal aid scheme. Indeed, it would only be possible in the vast majority of cases if full legal aid was given.
The amendment is therefore an important one. It covers a field of some difficulty in law and a child may find itself in a battlefield where many legal tussles are involved. I hope therefore that the noble and learned Lord will feel, in view of the particular care and concern of ourselves and the courts for the interests of the child, that this right of representation should always be granted to any child who is party to the proceedings of the kind that I have mentioned.
§ Lord Renton
Before the noble and learned Lord sits down, I wonder whether he can clarify one point. He indicated that this provision should apply regardless of means. We know that some children have considerable means.
§ Lord Elwyn-Jones
It is intended as a broad provision for the child. There may be a child who is well off, but that is certainly the intention of the amendment. I beg to move.
§ Baroness Macleod of Borve
Before the noble and learned Lord the Lord Chancellor speaks, perhaps I may very briefly say one or two words, because I have had many years of adjudicating in juvenile courts. I warmly support this amendment. I believe it is very important that it should be part of the Bill, though I must tell the noble and learned Lord, Lord Elwyn-Jones, that representation is nearly always given in juvenile courts. We see that the child is always represented separately from his parents or indeed from the social services. In my view and to my knowledge it is always the practice that somebody who is legally qualified should represent a child of any age. As members of the Committee will know, it can be a child of any age from birth to age 18. It is certainly the practice, but I warmly welcome this amendment.
§ 3.15 p.m.
§ The Lord Chancellor
I wish to intervene at this stage not to deal with the whole matter but to deal with the point that arose at the opening of the speech by the noble and learned Lord, Lord Elwyn-Jones. He began by suggesting that we might take Amendment No. 43C along with this one. There is a tremendous difference, and I wish to emphasise that right at the outset so that there will not be any misunderstanding. I feel responsible for some misunderstandings in the past and I do not wish to be responsible for any more if I can avoid it.
This amendment deals with civil legal aid and we have sought to delete from these provisions in order to have separate specific provisions dealing with child care and the juvenile courts. These provisions are to be found in the later clauses of the Bill and in particular in Clause 26, to which applies the later amendment referred to by the noble and learned Lord, Lord Elwyn-Jones.
87 The Committee will see that Part VI of the Bill deals with legal aid in special cases. I believe that this is an innovation in the legal aid legislation. We thought it right to take these particular provisions—namely, care proceedings—out of the general categories and to deal with them specially and specifically because we appreciate that special considerations apply to them.
I believe I am right in saying—I am sure I shall be corrected speedily if I am wrong—that children in care used to be dealt with for legal aid purposes under the criminal legal aid provisions. I believe it is very obvious that that is not an appropriate place to deal with them. I feel strongly, and I know it is also the view of others who have dealt with these matters before me, that the provisions as regards children in care should be separate provisions. Therefore, my noble friend Lady Macleod of Borve is dealing with the situation which is covered in the later clauses where we have sought to give a very wide discretion to allow children whose care is in question to be represented.
The part of the Bill which we are now considering is the general provision dealing with legal aid. Accordingly the effect of the amendment put forward by the noble and learned Lord, Lord Elwyn-Jones, is that any child who is a party to the proceedings shall be automatically entitled to legal aid whatever the child's means, whether or not the child has any reasonable case to put. I think that is what he made clear and that is certainly the way in which I understand his amendment. In other words, both the merits test and the means test which apply to all others are to be removed simply because the person in question is a child.
I hope I am second to none in wishing the arrangements in our courts for children to be superb, sensitive and humane. But I cannot believe that it will be in the interests of children to make a general provision of this sort because it will put them immediately at a great premium—if you wish to bring a case, particularly one which raises a general question, try to get a child who would be a possible plaintiff. Thus a situation is produced in which a child becomes a mere pawn in the hands of other interests with a view to promoting those other interests.
I do not wish to elaborate on this at this stage. I shall sit down in a moment. I wish to make abundantly clear what is the subject matter of this amendment so that there should be no misunderstanding. If to any extent I have got it wrong I am sure that the noble and learned Lord will be kind enough to correct me.
§ Lord Elwyn-Jones
The problem arises chiefly in the family scene. While the noble and learned Lord has paid a tribute to our court arrangements with regard to children, I note in the White Paper to which I referred at page 1:The prime objective has been to seek improvements in the law so as to offer a fairer deal both to children and parents, especially in the legal processes when compulsory state intervention is necessary to protect and promote the interests of the child.Therefore changes in this field are clearly thought to be necessary in the White Paper.
88 In the interim phase there is what I have also referred to as the confused and unnecessarily complex state of the law. In that scene, into which the child may be projected without its own choice, the necessity of there being provision for legal representation of the child under the legal aid scheme seems to me to give reality to our claim that we always put the children first. This is an attempt to assert that principle in simple terms and make it part of our law.
§ Lord Renton
I am surprised that my noble and learned friend—if I may so describe him, as I do by chance on occasion—should be at such pains to wish to protect the children of the very rich in this way as undoubtedly his amendment would do. Let me just take one example. A millionaire may die, leaving several dependants including a child. The will is contested. It may be contested of course on behalf of the child; it may be contested on behalf of one or other of the dependants.
In a case like that, apart from the attitudes which any of the particular parties other than the child had taken, the court would almost certainly award costs out of the estate to the child. There would be no difficulty about legal representation. One could multiply the various occasions when, as I said earlier, children with their own means are children with a considerable stake involved, perhaps in some Chancery action for breach of trust. They would, under the noble and learned Lord's amendment, be represented at public expense in what could he quite an expensive action. When all the merits and justice of the matter would indicate that because the child or the guardian ad litem on his behalf, or a trustee on his or her behalf, could afford the representation, the noble and learned Lord is saying that the public should nevertheless pay. Speaking for myself I cannot go along with that.
§ Lord Denning
Perhaps I may say that in our civil law at the moment the interests of the child are well protected. We have the procedure by a next friend for the plaintiff and a guardian ad litem for the defendant. In Chancery proceedings the judge can direct that the children be separately represented. Then those proceedings can be tested for legal aid and for funding in the ordinary way.
I view with some doubt the prospect in custody proceedings, or access proceedings, of each of the children being separately represented and legal aid being paid for them. I am afraid that is going much too far. In other words, I would not support the amendment.
§ Lord Hooson
It seems to us on these Benches that the noble and learned Lord the Lord Chancellor has a good point, and he has practically convinced us of it. But may I express one concern and that is on wardship cases where the child is a party to the case? Where is that covered in the present provisions?
§ The Lord Chancellor
As it happens I was raising a question about wardship myself. It may well be that some further special consideration might be required in relation to wardship proceedings. Certainly at 89 present the civil legal aid provisions with which we are dealing, and considering whether they should be amended, are general provisions which would cover all forms of civil legal aid.
I think that in wardship proceedings the kind of provisions to which the noble and learned Lord, Lord Denning, has referred would arise. I know from information that I have received that at present quite a substantial amount of work in the Family Division relates to questions of whether the child should be in care or in wardship; difficult disputes of that kind. I had rather taken it that the children-in-care provisions of the later clauses to which I have referred would apply, but if there is any question about it I shall certainly consider that further.
On the main matter I am glad to know that at least I have made some progress with the open minded. It is a serious matter and I do not wish in any way to suggest that it is not. However, it is important to be absolutely clear in our consideration of it that we do not confuse the heart with the head too much, and we must try to keep clear the different issues which are involved, and do our best to target the help to children to the proceedings where that help is likely to be required.
§ Lord Elwyn-Jones
While I should prefer to be associated with an open mind rather than a closed book, the fact is that in this amendment we are dealing with a situation of a child who is already a party to the proceedings. Unhappily there are cases—and I vividly remember one myself—where both father and mother are in an attitude of abandoning the interests of the child altogether.
I remember one case—it touches on frivolity—which arose during the exercise by the Attorney-General of his powers to call in the intervention of the Queen's Proctor in the famous cases that made the lives of chambermaids so important in those old days. That was a case where my department let me have a summary of the facts, and the facts were as follows: the husband in the case said, "My wife and I would have been divorced years ago but for the children. She won't have them, and I won't have them."
That situation does arise. However wealthy the parents may be it does not follow that the child may be able to count upon his provision. While the noble and learned Lord, Lord Denning, has acclaimed the present arrangements as wholly satisfactory, as I have said in the quotation that I made from the Government's own White Paper:The prime objective has been to seek improvements in the law so as to offer a fairer deal both to children and parents, especially in the legal processes when compulsory state intervention is necessary to protect and promote the interests of the child.".There is nothing novel in what I am proposing.
However, I detect, if he will allow me to return the compliment, a closed mind for once in the noble and learned Lord the Lord Chancellor. Once one confronts that, my experience has shown that it is better to give up and fight the battle in another way on another day, which is what I propose to do. In those circumstances, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.90
§ 3.30 p.m.
Lord Mishcon moved Amendment No. 34C:
Page 11, line 35, at end insert—
("(7) A person who is nominated to be the plaintiff or defendant in a class or representative action may he offered representation under this Part for the purpose of those proceedings without his financial resources being taken into account.").
The noble Lord said: I hope that at the end of this amendment I shall not be put in the unhappy position which has been so beautifully expressed by my noble and learned friend. It does not deserve that fate. Perhaps I may take the Committee through it in this way. First, what is the amendment seeking to do? As the Committee will see it seeks to see to it that:
A person who is nominated to be the plaintiff or defendant in a class or representative action may be offered representation under this Part for the purpose of those proceedings without his financial resources being taken into account.
§ Facing as I do a negative indication from the noble Lord, Lord Renton, at the very outset of my speech, I continue with some optimism to try to convince him as somebody who is totally openminded.
§ It is one of the defects of our legal system easily put right by regulation and not by statute that we do not know at the moment the concept of the class action. This was vividly shown as being a grave defect in our system in the case that is known as the Opren case. It has the strict title of Davies v. Eli Lilly and Company. I should like to quote the Master of the Rolls word for word. I hope the Committee will forgive me if I do quite a lot of quoting in this address. I have to, because the Master of the Rolls put his problem so graphically and so clearly, so much better than I could in addressing the Committee.
The concept of the class action is as yet unknown to the English courts. In some jurisdictions, notably in the United States where large numbers of plaintiffs are making related claims against the same defendants, there are special procedures laid down enabling all the claims to he disposed of in a single action. Clearly, this is something which should be looked at by the appropriate authorities with a view to seeing whether it has anything to offer and, if so, introducing the necessary procedural rules. Meanwhile, the courts must be as flexible and as adaptable as possible in the application of existing procedures with a view of reaching decisions quickly and economically.".
§ The Committee may well wonder what happens then in our present procedure if we do not have the concept of class actions. What happens is that one chooses what is called a lead action. A plaintiff is selected or a defendant is selected upon the basis that this might be a typical case. Unfortunately, this works out dreadfully from the point of view of legal aid. It was much discussed in the Opren case. Again, with the committee's permission, I quote the Master of the Rolls, this time at some length, only because he put the difficulties so succinctly. If by an amendment such as this we do not rectify the position now that we are dealing with legal aid, it may be a long time before we can do so.
This is what he said:
Put simply, but for the present purposes wholly accurately, legal aid helps those who lose cases, not those who win them. Legal aid makes out-and-out grants to those who lose cases. It only makes loans to those who win. This is the way it works.
Mr. X has a claim which looks from his point of view reasonable. He applies for legal aid. His means are assessed, and if they are sufficiently small he will he given legal aid. According to how small his means are, he may have to make some contribution to the legal aid
fund, although there are many whose contributions are assessed as nil. Subject to his paying those contributions, which are never very large, the Legal Aid Fund pays the whole of his costs to the litigation. If at the end of the case he loses, he may be ordered to pay a small sum to the successful defendant, but unless there has been a dramatic change in his circumstances—he has made a major win on the pools or something of that sort—this is the extent of his liability. His own costs of fighting the action will be borne by the Legal Aid Fund and the defendant will be left to pay all those costs incurred by him in successfully defending the claims. In other words, the unsuccessful plaintiff has received an out-and-out grant from the state.
But suppose the plaintiff wins, as the Legal Aid Fund claims that he does more often than not. Then a very different picture emerges. As a successful party he does not have to pay the defendant's costs, and usually the defendant will be ordered to pay his. Let him not celebrate too soon. He may find that the defendant has no money or the Legal Aid Fund may have to incur further expenses in making the defendant pay. Furthermore—and this is very important—the defendant will at best only be ordered to pay the plaintiff's taxed costs. This is almost always less than the costs which have been incurred by the plaintiff in prosecuting his case to a successful conclusion. So there will always be a shortfall which may be very large if the defendant cannot meet the order for costs or if the plaintiff failed in some subsidiary issue and has been ordered to pay the defendant's costs in fighting that issue.
'Why worry', said the successful plaintiff to himself"—
These are the dramatic questions put by the Master of the Rolls—
'I have my damages. I have paid my contribution to the Legal Aid Fund and the fund has met all the costs which I have incurred'. Unfortunately for the temporarily happy plaintiff, Parliament has required the defendant to pay the damages not to him but to the Legal Aid Fund. That fund is required to use his damages to pay itself back every penny of the costs which it has incurred in assisting him to fight the case. It is only after this has been done that anything that is left will he paid to him. It may be that nothing will be left, or it may only he a relatively small charge".
Before I go on with the quotation, this is what happens if you choose a plaintiff, as is so often done, who is not liable to make any contribution to the Legal Aid Fund. The quotation continues:
In other words, for a successful plaintiff the Legal Aid Fund provides a loan, not a grant, at least to the extent that his damages are sufficient to repay the loan. Put slightly differently, every legally aided plaintiff should realise that if he succeeds in recovering more by way of damages, costs and interests than it has cost to recover them. if the money actually paid by the defendant in respect of damages, costs and interests exceeds his own costs, which is after all what he expects, he will be in no better position than an unassisted litigant.
So let us look again at the scheme whereby the plaintiff involved in the legal action should he chosen from those who are legally assisted with nil contribution. None of them would ever get a penny piece by way of compensation. Anything which the defendants were ordered to pay in respect of his damages, costs and interests could be totally absorbed in paying their own costs. This would be a grossly unfair situation".
§ That is the position if you do not have a class action, for which this amendment seeks to provide, and you have what has been described as a lead action in legally aided cases. The benefit of a class action is that it enables individual claimants with a similar grievance to join together in an action where the existing rules of court would make it simply too prohibitive to pursue the claims individually.
§ What I plead for in this amendment is the following. As I mentioned before, permission to bring class actions would not entail legislation; it would merely entail a procedural rule. About that there is no difficulty at all. If the Committee is confronted with a difficulty as to whether an entirely individual and exceptional case would be created on our statute book, perhaps I can make the point that Section 170 of the Housing Act 1985 provides for the 92 Secretary of State for the Environment to have discretion to give assistance, including advice and representation without a means test or any charge on property recovered or preserved. The proceedings in that case relate to the exercise of the right to buy.
§ Section 66 of the Race Relations Act 1976 and Section 75 of the Sex Discrimination Act 1975 enable the Commission for Racial Equality and the Equal Opportunities Commission to give legal assistance out of public funds to persons to pursue their rights under those Acts. Lastly, there is the Employment Bill which is still to come before your Lordships. Clause 19 gives the commissioner power to assist trade union members to take proceedings against their union. It is estimated—and I ought to point this out quite clearly—that under Clauses 18 and 19 of the Bill the cost to public funds will be £1,200,000 in 1988–89 and £1,300,000 in each of the following years.
§ The liability under this amendment would be considerably less. Indeed, it would be negligible. There might even be a profit by virtue of the fact that the bringing of a class action would quite obviously see to it that similar actions were not brought. The result of the class action would settle the claims of so many people, as would have happened in the Opren case, and the legal aid fund would be saved all those additional cases.
§ I hope that the noble and learned Lord the Lord Chancellor will not reply by saying that the matter is under inquiry and that it will require a good deal of further research. We have heard for a long time about the need for class actions. To pass this amendment will not suddenly create class actions. The procedural alteration will have to be made. Parliament, with a little foresight, will have seen to it that provision could be made in such circumstances (and has been made in such circumstances) for a necessary alteration in our procedural law. And a necessary and economic measure will have been passed. I beg to move.
§ The Lord Chancellor
Before the noble Lord sits down, will he be kind enough to explain how his amendment meets the difficulty for the individually legally-aided litigant to whom the Master of the Rolls referred?
§ Lord Mishcon
It meets the difficulty in this way. If the class action were brought and the state funded it, the same results as pertain in the present action would not have to be a burden on the legal aid fund in that one would not be choosing the person who was the poorest and who would make no contribution. In a class action one would be seeing to it that the whole of the damages awarded, if the case were successful, would be paid, and the costs therefore of all of the parties would be attributable to the gross sum of the damages. If one takes the single case, which is what the Master of the Rolls was bringing to Parliament's attention, one does not do that. The single plaintiff is awarded a single sum by way of damages and it is against the whole of that award of damages that the cost would be chargeable. In the class action the whole of the class would bring the action; the whole of the damages would be awarded on that basis; and the charge would be on a very large sum indeed.
§ 3.45 p.m.
§ Lord Denning
I hope that we shall not have anything like the class action in this country. In the Opren case the award of damages ran into millions of pounds in favour of the class. After everyone had put in a claim each claimant had a share out of those millions of pounds. The difference between the United States and ourselves is this. The lawyers for the claimants there would take for themselves 40 per cent. of the damages. They are the people who would gain out of these huge sums. Let us not get into that.
Our system at the moment works perfectly well. When I was at the Bar I had a case where a number of investors had been deceived by a prospectus. They combined together contributing a small amount each and brought their action. It was settled well in our favour. Then there are the thalidomide cases. You select one, two or three cases and you have a body of supporters who are all interested. You take a leading or test case and get that decided. Then the rest follow suit. All the thalidomide children got good compensation without a class action. We know how the Burmah Oil shareholders claimed together. They did not win but they had a good case which was well supported. Our present system works perfectly well and I should not like to suggest that it is altered.
§ Lord Hailsham of Saint Marylebone
Whatever be the relevance of the Opren case and the difficulties to which it has given rise, I rather question whether the proposed amendment provides a relevant or suitable answer. I should like to raise with my noble and learned friend on the Front Bench some of my doubts in the matter. This is a complicated issue but I rather doubt whether the amendment is at all an appropriate remedy.
In the first place the noble Lord, Lord Mishcon, drew upon a fact which we discussed yesterday—the effect of the statutory charge upon the damages actually recovered by a plaintiff in proceedings. We discussed that matter at some length. The statutory charge in that case only provides that if a person brings an action for damages, the damages recovered or the property preserved by the litigation should be a first charge on the costs. That is simply, by analogy, an introduction into the law of legal aid of what already exists in unassisted litigation; namely, the solicitor's lien on property recovered or preserved. That has absolutely no relevance to the proposed amendment. It is something we have discussed, and I believe that the present law relating to legal aid is a perfectly just and sensible provision. Otherwise the assisted plaintiff would be in a position vastly superior to that of the unassisted plaintiff who is subject to the solicitor's lien, and the taxpayer would be considerably worse off.
The second point raised by the noble Lord, Lord Mishcon, is the Opren case in relation to the introduction of a so-called class action. This has very little relevance to the amendment itself. Undoubtedly the Master of the Rolls, who expressed quite accurately the effect of the statutory charge, raised a number of quite interesting issues where a large number of plaintiffs, as in the Opren case or in the thalidomide case, as referred to by my noble and 94 learned friend Lord Denning, have a certain number of issues in common in a single product liability case. But that is not part of the legal aid business at all. We in this country, of course, can consolidate certain proceedings and in that case it may be, or it may not be, that the legal aid rules or regulations ought to be looked at from the point of view of that possibility. But the legal aid scheme itself is wholly outwith that kind of consideration.
The plaintiffs in such a case often have totally different interests at stake. For instance, some of the plaintiffs have lost relatives and are bringing their actions under the Fatal Accidents Act. What they are claiming for is the loss sustained either by the estate of the deceased or by the extent of dependency of the actual plaintiff. But again that is totally outside the legal aid scheme and their interest is therefore quite different from that of the plaintiff who claims to have been suffering from the effects of the dangerous product, whatever it may have been. It has a totally different claim or interest.
Again, the plaintiffs who claim to have been suffering from the consequences of the dangerous product also have different interests in different degrees. Of course there may be a common factor. The common factor may be that all the plaintiffs have to prove that in the first place the product was dangerous. But there are factors which are not common. In the drug cases, of which the vaccination cases, the thalidomide cases and the Opren case are perfect examples, each separate plaintiff has to prove that he has suffered from some complaint or other, and that that complaint or other is caused by the dangerous nature of the product whose qualities are in question. To try by means of this amendment to solve this particular problem seems to me to be totally inappropriate, but I speak, of course, subject to my noble and learned friend on the Front Bench.
There is a problem about a group of cases—Opren is an example—where a number of plaintiffs all make a claim against a single defendant based upon an allegation relating to the dangerousness or otherwise of the product he has sold. But that is something which, as I think the noble Lord, Lord Mishcon, acknowledged, could be dealt with in one way or another by rules of court. I make no comment upon the plea of my noble and learned friend Lord Denning that that is not necessary under our present legal system. He may well be right. But what we are considering is this amendment to the Legal Aid Bill and the question which I am raising in connection with it is the appropriateness of this amendment to cure that particular problem, if any.
In the Opren case another issue which has been very widely canvassed is involved. As part of the alleged settlement to which some of the plaintiffs in that case are parties, and some I gather are not, there was inserted by the defendant a term that the solicitors who had appeared for the in-settlement plaintiffs should never be allowed to act in future on the part of the out-settlement plaintiffs—the potential plaintiffs who are not within the settlement scheme. I question whether that is not against public policy, but that again is something which the courts would have to decide and which has absolutely no relevance to the proposed amendment.
95 There is, of course, a group of plaintiffs who have lost relatives and they raise a totally different question in the Opren case, on which I have strong opinions but on which other people have not. But in, I think, American law and in some other systems one is given damages against a negligent defendant for the grief one suffers as a result of bereavement. I speak as one who has lost a close relative in a case in which I felt very deeply. But what kind of money would I have asked for in compensation for that grief? I would have asked for nothing whatever, but had I had a case in negligence, would I have asked for £10 or £10 million? I would rather have had my wife back.
§ Lord Ackner
There are real problems in this field and I do not think they can be skated over in the way in which they have been. May I refer to two of them? If you have a large number of people involved in the same type of claim, their damages will be different but the common issue will be "Can you establish liability?"
Let us assume that in the case of one individual his damages, if he succeeds, will be modest. The case is a very complicated one, as I can indeed confirm was the case with the thalidomide children because I acted on behalf of the first 60 in their proceedings. If you take the one case, that person carries on his own shoulders all the ultimate liability for a charge on what he recovers. In the course of those proceedings every step that he takes which is in the interests of the class may not be successful.
He may make a request for discovery which is refused and costs are ordered against him. He may go to the judge in chambers on an appeal and he may lose. But all of this is essential in order properly to prepare the case which is vital for Lie class. So, inevitably, in the course of a complicated case there will be an amount of costs which he does not recover from the other side, because in every step he takes in the course of such a complicated case he cannot be guaranteed success.
The net result at the end of the day is that he recovers his £5,000 subject to the charge and the charge can be as great as, if not more than, £5,000. So he has had, no doubt, the inestimable pleasure of mounting a crusade on behalf of all the other class but he gets nothing in return.
What is required simply to meet that particular point is that in a class action there should be no charge on the amount recovered. The advantage to the public purse—which is a phrase that we have heard so repetitively throughout the debates on this Bill, and which we shall no doubt hear a great deal more—is being protected because it is cutting down the number of proceedings.
The second point is this. Indeed we had this problem in practice in the thalidomide case. We took two cases at either end of the spectrum of damages. If we had fought our way through—assuming that we had, and it is fanciful because I am sure we would not have done so—and established liability, that would bind nobody except the two parties to the proceedings and the defendant. If the defendant had been disappointed with the action, with the competence of his counsel, with the misfortune of the 96 particular judge who tried it, or whatever it may be, he might say "Very well, I shall fight the next case."
If the other members of the class, on whose action one cannot bring proceedings under legal aid, had been disappointed with what the other two had received, they would have said, "Very well, we will go on." Maybe the legal aid authorities might have supported them—maybe not. Maybe it would have been done on a speculative basis. But it is an established principle and well recorded in Latin, which I shall not seek to pronounce, that it is in the interests of the public that there should be an end to litigation. That is why there are class actions and that is why there is a lacuna in the legal aid system which does not permit one. I therefore support the amendment.
§ 4 p.m.
§ Lord Campbell of Alloway
As the noble and learned Lord, Lord Ackner, has just stated, the amendment does not deal with the charge. The main problem is that there should be no charge on the amount recovered. The amendment seeks to deal with the offer of representation. It is a misconception to think on the aspect of the offer of representation, which is different from the charge, that legal aid cannot cope with the situation as envisaged by the amendment.
I must here declare an interest because I have been, and still am, instructed in certain of these vaccine-damage cases. They are all legally aided and most of them with a nil contribution. A lead case was selected. It has been proceeding for two or three months and should come to an end soon. It is on product liability, as mentioned by my noble and learned friend Lord Hailsham. The question is: can the vaccine cause brain damage? Liability is of course tied up in that determination. To that extent, the legal aid authorities, having the governance of the situation, can produce a result and seek to curtail the ambit of litigation; bring litigation to an end; or enable a settlement to ensue.
The amendment does not go the root of the problem, as identified by the noble and learned Lord, Lord Ackner, and so it seems unnecessary to deal—I say this with the greatest respect—with the selection of the lead case on legal aid, as is proceeding with the vaccine-damage cases. Therefore one wonders what it achieves. It has been stated that in a class or representative action representation should be offered with financial resources being taken into account. In effect that means nothing because in many such cases there are nil contributions. If they were taken into account in such a case, would there be any injustice? If one goes to the root of the evil one deals with the charge and the amount recovered, which, as I understand it, is not in the ambit of the amendment.
§ Lord Hooson
I entirely agree with the views expressed by the noble and learned Lord, Lord Ackner. There is a lacuna in the law or in the provisions for testing, in the interests of the community, the matters that he has described. The noble and learned Lord, Lord Hailsham, overemphasised the differences and underestimated 97 the common factor in the thalidomide cases and other such actions.
The noble and learned Lord, Lord Ackner, was correct when he said that the common factor in the case (whether one can prove liability) overrides the differences. Whether it is a fatal accident action or an action for damages for personal injury pales into insignificance as those actions concern only the assessment of damages, whereas the proving of liability is an important matter.
The point raised by the noble Lord, Lord Campbell of Alloway, dealt with—
§ Lord Hailsham of Saint Marylebone
Perhaps I may interrupt at this stage. I apologise for so doing. When the noble Lord, Lord Hooson, reads Hansard tomorrow I think he will see that 1 identified the common question that exists in these cases which is to prove whether the product in question is, or is not, capable of causing damage. I thought I said that explicitly. However, if I did not I was guilty of a great error.
§ Lord Hooson
I accept that the noble and learned Lord said that, but he overemphasised the differences, as I understood him, in his argument against the amendment. I come back to the point raised by the noble Lord, Lord Campbell of Alloway. It was a point of detail. If it is necessary to deal with the charge that can be made with regard to legal aid, there can he another amendment. This is a question of principle. There is a gap in the law. How can an important factor that governs the lives of many members of the community be expeditiously and economically dealt with on behalf of that community? There is an overwhelming case for a class action. I am not sure that the amendment properly deals with this issue. But on the question of principle, I entirely agree with the noble Lord, Lord Mishcon. Should it be necessary to improve or change the amendment on Report, so be it. The noble and learned Lord, Lord Ackner, presented me with an unanswerable case on the principle of the amendment.
§ Lord Campbell of Alloway
If we close the gap, as proposed by the amendment, where do we go if we do not accept the principle suggested by the noble and learned Lord, Lord Ackner? It does not deal with the essence of the injustice.
§ Lord Hooson
With the greatest respect to the noble Lord, I think that that matter can be dealt with at a later stage.
§ Lord Lloyd of Hampstead
I sympathise with the objectives of the amendment, urged with his customary eloquence by the noble Lord, Lord Mishcon. However merely to try slightly to modify the law of legal aid is not an adequate way to cope with the problem. There is no doubt that there is a substantial lacuna in our law, long recognised, and one which is dealt with comprehensively in modern American law by the so-called class action. In this country we have only two ways of coping with the situation. One is by means of a test action, and the other is by a representative action. But without going 98 into any detail, which would be entirely inappropriate now, both those systems are unsatisfactory inasmuch as they have considerable limitations.
Once one introduces the class action into our system one is faced with the considerable problem of how to deal with the costs. One must remember that in America the matter is greatly simplified because they do not have orders for costs; each side pays its own costs. That opens itself to a system of which few of us approve in principle; that is, contingency fees. There is a complex problem here which needs to be tackled. One hopes that this is the kind of problem on which one might look for assistance from the two law reform commissions which could go into the whole matter to see how it can be dealt with.
With all respect to the gallant effort made by the noble Lord, Lord Mishcon, to introduce some temporary palliation in the light of the Opren and other similar cases I do not think that this is an adequate way to cope with the problem. However, it may lead to an indication from the noble and learned Lord the Lord Chancellor that he regards this as a lit and proper topic to refer to the Law Commission and the Scottish Law Commission. If so, there would perhaps be the hope that in a reasonable space of time we might be presented with a thoroughgoing, carefully considered and balanced solution such as we have learnt to expect with gratitude from those two admirable commissions.
§ The Lord Chancellor
I am grateful to all noble Lords and noble and learned Lords who have taken part in this discussion. I am bound to say at the outset that I do not understand that this amendment addresses the difficulty to which the noble Lord, Lord Mishcon and the noble and learned Lord, Lord Ackner referred. It is normally my privilege to understand very well what the noble and learned Lord, Lord Ackner, says. I can follow his argument extremely well; the same is true with regard to the noble Lord, Lord Mishcon. But on this occasion I very much regret that I cannot see how the amendment begins to address the only problem in relation to this matter which they have brought to our attention.
All the amendment does is to say that the representative in a class action, whatever that may be, or a representative action, shall be entitled to the benefit of representation, or may be entitled to the benefit of representation, without his means being assessed. If he has means which are beyond the liability limits, that would be of benefit to him. I can see that. However, it is usually easy, as the noble Lord, Lord Mishcon, says, if I have his words right. One normally chooses a plaintiff who is not liable for any contribution. That is usually a wise thing to do. If there are a number of people in this position, one normally chooses the person with the least means because he is putting least at risk. As far as I can see, it does not help to have the suggested provision at all.
1 find it very difficult to be in a position where I cannot understand how the amendment in any way addresses the problem referred to. I am not at all in the business of suggesting that there is no problem. There are quite a variety of problems in this area, as 99 the noble and learned Lord, Lord Ackner, with his experience of the thalidomide case, mentioned. There were problems in other cases referred to particularly by my noble friend Lord Campbell of Alloway and other noble Lords. There are great difficulties in some of these actions. The Opren case is one which is still to some extent current, so I should be careful what I say about it although noble Lords are entitled to talk about it in relation to legislation because they are not subject to the restrictions of the sub judice rule in parliamentary proceedings. However, it is right to be careful what one says about it.
It is the type of case in which a number of people have taken a particular drug. Not all, hut, I think, many of those who took the drug, have, following the taking of it, suffered various unpleasant things such as photosensitivity, damage to fingernails and a whole variety of results. There is a very considerable question which obviously involves complicated scientific assessment as to whether any of the consequences were due to the taking of the drug. The fact that, let us say, the loss of the fingernails was attributable to the taking of the drug does not by any means establish that photosensitivity is a consequence of taking the drug and so on. So the Opren case is complicated in that way.
The causation is not necessarily the same question. The question of causation is not necessarily the same in relation to each of the plaintiffs. There are similar cases in that respect; for example, actions involving the loss of an airliner or something of that kind. The consequences are in very general terms the same for all the people involved. The question is whether there was some defect in the operation, design or maintenance of the airliner.
However, so far as I have been able to understand, one of the principal difficulties of the Opren case which arises and can arise in any big case is that the costs of investigating the matter and establishing the causation would be very large in relation to the amount of damages which would be recovered, particularly in this country where the damages sought to be recovered are related to death. That is where it is the death of a relative which is in issue, as my noble and learned friend Lord Hailsham said. If there is any cost left over, it will swallow up that sum of damages.
I think, in the thalidomide cases, the damages awarded to individual plaintiffs would be very considerably larger than the damages in the Opren case. It does not completely remove the problem but to some extent it mitigates matters. If the costs to be collected are out of a large sum, there may be a greater readiness to bear that than otherwise.
The question really is whether there should be special arrangements in relation to costs in a representative action. Representative actions have been known to the procedural law of England and Wales for a long time. There is a present Rule of Court—Order 15, Rule 12 of the Supreme Court Rules—which talks about representative actions. I am not sure whether class action referred to in this amendment is intended to be another name for the same thing or something different. If it is something 100 different, I am not sure what it is. No doubt in due course we shall be enlightened as to what is the distinction between a class action and a representative action.
So far as this case is concerned, perhaps I may concentrate on the representative action. Rule 12 provides:Where numerous persons have the same interest in any proceedings"—and I miss out an exception which does not concern the Committee—the proceedings may be begun and, unless the Court otherwise orders, continued by or against any one or more of them as representing all except one or more of them".In other words, the court makes an order, as I understand it— and those noble Lords who are more familiar with the procedural law of England and Wales than I will correct me if I am wrong—that one or possibly more than one plaintiff will be allowed to proceed. These cases will be held to test the whole of the area and then the results will be applied in the rest of the group whose cases are representative.
It seems to me a very good arrangement, if I may say so respectfully, avoiding a multiplicity of proceedings. I think this is the same principle that my noble and learned friend Lord Ackner referred to as covered in the Latin expression. That situation is one in which it may well be that problems will arise about costs. The courts have sometimes found ways of dealing with that. But these problems arise for plaintiffs who are wealthy as well as for those who are of small or modest means.
The noble Lord, Lord Lloyd of Hampstead, is surely right that the problem is one of fundamental procedural law. Are you going to have class actions? As many noble Lords know, the point has been discussed frequently in this country. So far, Order 15, Rule 12 are the order and rule which have been made relating to it. The question of whether the class action from America should be imported is very difficult because one of the basic conditions under which the class action has prospered is that there are no awards of costs. Therefore this problem on which noble Lords have focused this afternoon does not arise and there is no need to deal with it.
However, in our system, generally speaking, costs are awarded, although I think I am right in saying that in test cases sometimes even if the defendant succeeds he may not be entitled to his expenses against the plaintiff if he has an interest in having the whole matter settled in a representative way. However, these are very fundamental questions of procedural law and it does not appear to me that they are matters which can be settled by an amendment of any kind in the Legal Aid Bill.
On the other hand the provisions of legal aid are that what may be appropriate would have to depend on what was decided in relation to such actions. So it would he putting the cart before the horse to make provision in the Legal Aid Bill for dealing with class actions when class actions or the procedures and conditions under which they should operate have not been introduced into the procedure.
Even if it were possible to introduce such an amendment to deal with the problem, it certainly 101 seems to me, with the greatest possible respect to those who have supported the amendment, that this amendment does not address the problem at all. As I said, I appreciate that there is a problem and I have given some thought to it since this amendment was produced. This particular point was addressed for the first time in this amendment and the amendment was tabled fairly recently. I make no complaint about that except to explain why in a way it requires more thought than I have yet been able to give it. It occurs to me as a possible way of dealing with this matter that it might be provided that the Legal Aid Board should have the option in some circumstances of entering into contract to provide representation outside the immediate confines of the civil legal aid restrictions by means of solicitors and possibly entitle the solicitors to instruct counsel on behalf of groups of this kind. It might perhaps be wise to have a more general provision of that kind because it may well be that if one can achieve unity of representation in a case where there is no conflict of interest a lot of expense will be saved.
That seems to me to be a possible way of dealing with this matter and it may well be that joint representation would result in the costs also being borne jointly. If one divides such a burden at least one is effecting some improvement. It may be very difficult to say that one should make a law to prevent drug companies from recovering their costs, for example, when other people obtain theirs. It would be very difficult to frame a particular exception of that kind.
Those Members of the Committee who were here last week will remember that the noble Baroness, Lady Ewart-Biggs, asked a Question relating to another problem in connection with a contraceptive device which was found to be injurious to the ladies who wore it. In that case there arose a similar problem to the one we are discussing. It had nothing to do with drugs at all. I believe the device was called some kind of a shield. There were very serious consequences. Problems and difficulties of separation have arisen. Some of the women claimed in time but a lot of them claimed out of time, which seems unfortunate. There are many problems in relation to this particular kind of case which are very hard to encompass in the Legal Aid Bill.
Only this morning I read correspondence from a Member of another place which suggested to me that the class action may not be an unmixed blessing. One of that Member's constituents lost her husband in a disaster in the North Sea. The disaster is the subject of litigation in America by way of a class action. So far as I have been able to understand the facts—the Committee will recognise that that is quite a severe limitation on what I am saying—that lady has not as yet recovered anything and was anxious to take proceedings in this country having waited as long as she has for anything to happen. But it appears to be difficult to withdraw from the class action. She is caught by it and it is difficult for her to withdraw and take proceedings in this country as apparently at the present time she would like to do. I do not know the full detail of that case but I know enough to suggest to me that careful consideration would be required 102 before one became involved in the detail of this class action.
I am certainly very open to the kind of suggestion that has been made by the noble Lord, Lord Lloyd of Hampstead, if that were to commend itself to the Committee. I should also like to develop a bit further the thinking along the lines that I have expressed myself, which I had considered as endeavouring to meet the point. The noble Lord, Lord Mishcon, said that he did not wish me to suggest an inquiry. I had some suspicion that that might be his attitude and therefore I wanted to come forward if possible with a reasonably constructive suggestion of my own. That is what I have tried to do, but I am certainly very open to suggestions such as the noble Lord, Lord Lloyd of Hampstead, has made. I certainly could not advise the Committee to accept this amendment, principally for the reason that it does nothing to help the problem which it is supposed to address so far as I can understand it.
§ Lord Mishcon
If the last sentence which the noble and learned Lord uttered were to be correct and I could see the force of it I should not be wearying the Committee with a reply but I am afraid that I cannot accept what he has said. Going backwards over the noble and learned Lord's remarks I wish to say with all humility, as I do not in any way pretend even to be an expert upon English law and procedure let alone upon American law and procedure, that at the present moment I do happen to have precisely the problem with the class action that the noble and learned Lord mentioned. One can always withdraw from a class action in the United States, I am advised, by agreement with the defendants if one is a plaintiff or otherwise by leave of the court. I throw that point out for what it is worth because it entails no disadvantage at all. Precisely the same situation might well apply in our courts except of course that one can always serve notice of discontinuance of proceedings with the resultant effect on costs which is not necessarily applicable in the United States.
I shall deal with the remarks which always command respect when they fall from the lips of the noble and learned Lord, Lord Hailsham of Saint Marylebone. Perhaps I may say at once that I support the point that the Committee may have felt there were grave difficulties in the way of a class or representative action because of the multiplicity of the bases of the claims of various plaintiffs. A great part of the noble and learned Lord's speech was directed to that. I at once concede that he dealt with the issue of liability where there could be some difference in the claims. The answer is that, if there is a difference, those people who have a difference from the majority would not be joined in the class action.
As has been said by the noble Lord, Lord Hooson, and others—certainly by the noble and learned Lord, Lord Ackner—the main thing that one ever deals with in a class action of the type referred to in this amendment, or in a representative action, is the issue of liability. Once liability is settled it passes in a very easy way, either to a master or a judge, or whoever it may be, to be dealt with as regards the amount of the damages that flow to each claimant. If I may say so, there is really nothing in that point.
103 I would have conceded at once to the noble and learned Lord that much of what he said was material and, as always, had to be answered because it was based upon sound reasoning. But if he in his kindness and the other Members of the Committee would look at the wording of the amendment they will see that the word is not "shall" but "may" in the second line:A person who is nominated to be the plaintiff or defendant in a class or representative action may be offered representation".That is exactly what the noble and learned Lord was saying would he likely to be a useful provision. That is exactly what we offer; namely, that the board could say in any proper case, "It will save a lot of money and a lot of litigation; we have the power to do it and we shall do it". It is not mandatory in any way. In my humble submission, the amendment does exactly what the noble and learned Lord thinks will be useful.
§ 4.30 p.m.
§ Lord Hailsham of Saint Marylebone
Perhaps I may interrupt the noble Lord. He puts his case very reasonably. However, it does nothing whatever to solve the problem of the charge. If the plaintiff is a man without means or a man of heavy means and he is given the chance of legal representation by way of legal aid without regard to his means, that does not alter the problem of the charge which was dealt with both by myself and by my noble and learned friend Lord Ackner. I argued that the amendment is far too simple and that it will not solve the problem.
§ Lord Mishcon
I have listened to the noble and learned Lord with deep respect. I know that he always listens to all Members of the Committee with great courtesy. I promise him that I shall deal with that very point; I had not reached it yet. He will find, when I reach that point, that I come in a not entirely white sheet. I shall admit that.
I turn to the noble and learned Lord, Lord Denning. He is listened to with respect. However, if I may say so, he must not start talking about lawyers taking a percentage of costs in group or representative actions. He knows as well as 1 do that contingency fees are not permitted in this country to either branch of the profession. Until they are permitted—I shall regret that day—that is not a valid point to make.
§ Lord Denning
Perhaps I may interrupt the noble Lord. I did not say that it operated in England and Wales, and I do not want it to operate here. That was simply my comment on the Opren case in America.
§ Lord Mishcon
Thank goodness there are differences. I am sure that America has advantages over us in some respects and that we have advantages over America in others. However, I am dealing with English law and procedure. The Committee should not be put off the trail by a reference to contingency fees which do not apply, as the noble and learned Lord well knows.
I turn to deal directly with the point made by the noble and learned Lord, Lord Hailsham. As one would anticipate, when the noble and learned Lord, 104 Lord Ackner, rose and delivered a short and effective speech he made my case for me with much more eloquence and good sense than I made it myself. I freely acknowledge that. He brought to the Committee not only a wealth of experience and learning; he also said that the need for legal aid to be dealt with in the way suggested in the amendment was obvious because it avoided a multiplicity of litigation and also because the test action was no test action at all unless it was agreed by the defendants that the action would determine liability.
§ Lord Mishcon
The noble and learned Lord makes an intervention which is extremely useful and which is meant to be helpful. I am grateful to him. That argument is unanswerable. However, I do not come before the Committee in a white sheet on this point. Obviously the question of the charge must follow the logic of the case for the amendment. There is not the slightest doubt that if 1 had done a thorough job with those who are very concerned within the profession that the amendment should be passed, I would have added a provision, as I meant to do in the argument which I am advancing to the Committee, that when such legal aid is granted the legally assisted person in whose name the class action is being conducted should not he subject to the legal aid charge in respect of costs incurred by him for the class action. That was part of my brief and I disclose that brief to the Committee. I concede at once that the noble Lords who pointed that out to me with great courtesy are absolutely right.
However, at Committee stage, having shown to the Committee the spots upon my sheet, perhaps I may say that we are supposed to be dealing with matters of principle. The matter of principle is absolutely clear. There is a need. When I look at the noble and learned Lord, Lord Denning—with affection, may I say at once—I find it extremely interesting, if only from the point of view of the personalities in the great profession of the law, that the current Master of the Rolls is saying that that is something which obviously ought to be looked at and that there is something wrong with the present system, while his immediate predecessor says, "I think it is a load of nonsense; you have no reason to look at it". It makes for interesting judgments which I shall not seek to pursue.
The noble and learned Lord, Lord Ackner, has said, with all the weight which he brings to an argument and debate, that that is a necessary matter to procure by way of amendment.
Before I sit down, I must take up the challenge of the noble and learned Lord the Lord Chancellor, who asked me whether the present rule in regard to representative actions was not sufficient. I shall return to that point. However, I say to the Committee that we are dealing with a principle. Perhaps the Committee can accept from me that inherent in the amendment was the exemption from the charge in regard to an approved case where the Legal Aid Board has said, "This shall happen. This is a class or representative action and we want to support it for good reasons". On that basis, I feel that I am putting the case perfectly properly at Committee stage.
105 I now turn to the question asked by the noble and learned Lord the Lord Chancellor. That was a perfectly fair question. He said, "Please tell my why, under Order 15, Rule 12, you cannot bring the sort of action that you have in mind". I am advised, on very reliable authority and with very good opinion, that when the Consumer Protection Act 1987 and the Landlord and Tenant Act 1987, for example, come into operation, there will be cases where a number of consumers or tenants can band together to take proceedings against a manufacturer or a landlord. At the present time, those proceedings cannot be instituted as group proceedings under Order 15, Rule 12 of the rules of the Supreme Court. Even if the rules are amended, the problem obviously remains as to how such actions can be financed if we do not deal with the matter as provided for in the amendment.
§ The Lord Chancellor
I do not wish to interrupt the noble Lord. However, I may not have put my question as accurately as I should like. I well understand the restrictions held in the authorities to apply to Order 15, Rule 12. The point I am trying to make is that he refers in his amendment to a class or representative action. I want to know what action it covers, other than the action in Order 15, Rule 12 of the orders of the Supreme Court. I wish to know how such an action is to be defined.
§ Lord Mishcon
I have received a reminder which removes all the spots from the white gown that I am supposed to wear when I appear before the Committee. I am reminded that my name is attached to Amendment No. 36A. I take the liberty of reading it even though it has not been reached. It says:A person who is granted legal assistance under the provisions of section 14(7) shall not be liable under those regulations to make a contribution to the Board in respect of the cost of the representation under this Part".The amendment of course proposes to incorporate Section 14(7). I should have realised that it was my job to link Amendment No. 36A with my remarks to the Committee on this amendment. I claim leave to be able to do so in order that the amendment may be put.
§ Lord Hailsham of Saint Marylebone
With the greatest respect to the noble Lord, Lord Mishcon, even that does not remove the point that I made to him in interruption a moment or two ago. Amendment No. 36A deals with contribution; it does not deal with the effect of the charge on damages recovered, unless I am entirely mistaken. I should like to be corrected if I am wrong.
§ Lord Mishcon
If there is a nil contribution, I agree that it does not automatically refer to the charge. In regard to that, I say to the Committee only that I was reminded of Amendment No. 36A. It deals with the question of the contribution, not the charge. As I said before, I admit that in my brief as it should have been there would be reference to the charge not being applicable to a case where the board admitted under its discretion a class or representative action to come within the suggested amendment. I ask for the principle to be looked at on that basis. If the principle 106 is admitted I undertake at a subsequent stage of the Bill to see that the matter is put right.
§ 3.42 p.m.
§ On Question, Whether the said amendment (No. 34C) shall be agreed to?
§ Their Lordships divided: Contents. 96; Not-Contents, 152.107
|DIVISION NO. 1|
|Ackner, L.||Jeger, B.|
|Airedale. L.||Kilbracken, L.|
|Ardwick, L.||Kilmarnock, L.|
|Attlee, E.||Kinloss, Ly.|
|Aylestone, L.||Listowel, E.|
|Banks, L.||Lloyd of Kilgerran, L.|
|Basnett, L.||Lockwood, B.|
|Blackstone, B.||Longford, E.|
|Blease, L.||Lovell-Davis, L.|
|Bonham-Carter, L.||Mackie of Benshie, L.|
|Brooks of Tremorfa, L.||McNair, L.|
|Bruce of Donington, L.||Mar, C.|
|Callaghan of Cardiff, L.||Mason of Barnsley, L.|
|Carmichael of Kelvingrove, L.||Meston, L.|
|Carter, L.||Milford, L.|
|Chitnis, L.||Mishcon, L.|
|Cocks of Hartcliffe, L.||Molloy, L.|
|Craigavon, V.||Mulley, L.|
|David, B.||Murray of Epping Forest, L|
|Davies of Penrhys, L.||Nicol, B. [Teller.]|
|Dean of Beswick, L.||Oram, L.|
|Diamond, L.||Peston, L.|
|Dormand of Easington, L.||Phillips, B.|
|Elwyn-Jones, L.||Pitt of Hampstead, L.|
|Ennals, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Falkland, V.||Prys-Davies, L.|
|Fisher of Rednal, B.||Ritchie of Dundee, L.|
|Fitt, L.||Robson of Kiddington, B.|
|Foot, L.||Seear, B.|
|Gallacher, L.||Sefton of Garston, L.|
|Galpern, L.||Shannon, E.|
|Glenamara, L.||Silkin of Dulwich, L.|
|Graham of Edmonton, L.||Somers, L.|
|Grey, E.||Stallard, L.|
|Grimond, L.||Stedman, B.|
|Hanworth, V.||Stewart of Fulham, L.|
|Hatch of Lusby, L.||Stoddart of Swindon, L.|
|Hayter, L.||Strabolgi, L.|
|Henderson of Brompton, L.||Taylor of Gryfe, L.|
|Heycock, L.||Taylor of Mansfield, L.|
|Hooson, L.||Tordoff, L.|
|Houghton of Sowerby, L.||Turner of Camden, B.|
|Hughes, L.||Underhill, L.|
|Hunt, L.||Wallace of Coslany, L.|
|Hutchinson of Lullington, L.||Wells-Pestell, L.|
|Ilchester, E.||Winchilsea and Nottingham, E.|
|Jay, L.||Winstanley, L.|
|Ailesbury, M.||Blatch, B.|
|Ailsa, M.||Bledisloe, V.|
|Airey of Abingdon, B.||Boyd-Carpenter, L.|
|Alexander of Tunis, E.||Brabazon of Tara, L.|
|Allenby of Megiddo, V.||Brightman, L.|
|Allerton, L.||Brougham and Vaux, L.|
|Arran, E.||Broxbourne, L.|
|Auckland, L.||Bruce-Gardyne, L.|
|Barber, L.||Butterworth, L.|
|Belhaven and Stenton, L.||Caithness, E.|
|Beloff, L.||Campbell of Alloway, L.|
|Belstead, L.||Campbell of Croy, L.|
|Benson, L.||Carnegy of Lour, B.|
|Bessborough, E.||Carnock, L.|
|Chelmer, L.||MacLehose of Beoch, L.|
|Clifford of Chudleigh, L.||Macleod of Borve, B.|
|Coleraine, L.||Margadale, L.|
|Constanline of Stanmore, L.||Massereene and Ferrard, V.|
|Cork and Orrery, E.||Merrivale, L.|
|Cottesloe, L.||Mersey, V.|
|Cowley, E.||Middleton, L.|
|Craigmyle, L.||Milverton, L.|
|Craigton, L.||Monk Bretton, L.|
|Cranbrook, E.||Montagu of Beaulieu, L.|
|Croft, L.||Montgomery of Alamein, V.|
|Croham, L.||Morris, L.|
|Cullen of Ashbourne, L.||Mottistone, L,|
|Davidson, V. [Teller.]||Mowbray and Stourton, L.|
|Deedes, L.||Munster, E.|
|Denham, L. [Teller.]||Murton of Lindisfarne, L.|
|Denning, L.||Nelson, E.|
|Dundee, E.||Newall, L.|
|Elibank, L.||Nugent of Guildford, L.|
|Ellenborough, L.||O'Brien of Lothbury, L.|
|Elliot of Harwood, B.||Onslow, E.|
|Elliott of Morpeth, L.||Orkney, E.|
|Elton, L.||Orr-Ewing, L.|
|Erne, E.||Oxfuird, V.|
|Erroll of Hale, L.||Penrhyn, L.|
|Faithfull, B.||Peyton of Yeovil, L.|
|Ferrier, L.||Polwarth, L.|
|Fortescue, E.||Porritt, L.|
|Fraser of Kilmorack, L.||Prior, L,|
|Gisborough, L.||Rankeillour, L.|
|Glenarthur, L.||Reay, L.|
|Gray, L.||Renton, L.|
|Greenway, L.||Rochdale, V.|
|Gridley, L.||Rodney, L.|
|Haig, E.||St. Aldwyn, E.|
|Hailsham of Saint Marylebone, L.||St. Davids, V.|
|St. John of Fawsley, L.|
|Harmar-Nicholls, L.||Salisbury, M.|
|Harvington, L.||Saltoun of Abernethy, Ly.|
|Havers, L.||Selborne, E.|
|Hesketh, L.||Selkirk, E.|
|Hirshfield, L.||Simon of Glaisdale, L.|
|Hives, L.||Stodart of Leaston, L.|
|Home of the Hirsel, L.||Strathcarron, L.|
|Hood, V.||Strathcona and Mount Royal, L.|
|Hunter of Newington, L.||Strathspey, L.|
|Hylton-Foster, B.||Sudeley, L.|
|Johnston of Rockport, L.||Swansea, L.|
|Joseph, L.||Teynham, L.|
|Kaberry of Adel, L.||Thomas of Gwydir, L.|
|Kearton, L.||Thorneycroft, L.|
|Knights, L.||Thurlow, L.|
|Lane-Fox, B.||Trafford, L.|
|Lauderdale, E.||Trumpington, B.|
|Lindsey and Abingdon. E.||Ullswater, V.|
|Lloyd of Hampstead, L.||Vaux of Harrowden, L.|
|Long, V.||Westbury, L.|
|Lucas of Chilworth, L.||Wilberforce, L.|
|Luke, L.||Windlesham, L.|
|Lyell, L.||Wyatt of Weeford, L.|
|McFadzean, L.||Young, B.|
|Mackay of Clashfern, L.||Ypres, E.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.51 p.m.
Lord Mishcon moved Amendment No. 35:
Page 11, line 44, at end insert—
The noble Lord said: This amendment provides that
any contribution payable out of capital to be paid forthwith if the sum is readily available or, if it is not, by such time as seems reasonable in all the circumstances".
Then there is this important part of the amendment to which I direct the attention of the Committee:
any contribution payable out of income to be paid by instalments at a rate which would, if the maximum contribution from income was required, secure that it would be paid within the twelve months next ensuing, or within the period in relation to which the disposable income has been computed, whichever is the later".
I can tell the Committee the object of the amendment in one sentence. It is to enable the assisted person to know at the very commencement of undertaking liability exactly where he or she stands.
§ Perhaps I may trouble the Committee with a little history and the reason for this amendment. Clause 15 of the Legal Aid Bill confers powers on the Lord Chancellor to make regulations making a legally-aided litigant liable to pay a contribution in respect of the cost of representation. That power exists already in Section 9(1) of the Legal Aid Act 1974. That defines how the total amount of the contribution shall be calculated. Regulation 44 of the general legal aid regulations of 1980 specifies that the contribution payable out of income should be paid over a period of not more than 12 months.
§ The Bill removes the current restriction on the upper limit of a contribution contained in Section 9(1) of the Legal Aid Act 1974. What worries me, those who sit with me, and I hope many others, is the recommendation at paragraph 44 of the legal aid White Paper. That proposes that monthly contributions to civil legal aid should continue to be paid throughout the length of the case. We can only conjecture that this means that litigants will be paying different amounts for their legal costs, not according to their means or ability to pay, but related to how long it takes to get the case dealt with by the court.
§ Anyone who has had any experience of litigation will know that if one is a defendant one is very much dependent upon the speed with which the plaintiff moves. If one is either plaintiff or defendant one very often has to depend upon the speed with which one's solicitor or counsel may move. Furthermore, whether one is a plaintiff or a defendant, the length between the institution of proceedings and the hearing date may depend upon the state of the court list in which one happens to have one's case listed. That is a completely indeterminate and, the Committee may feel, a completely unfair basis upon which to judge the period of contributions if they are to continue for that length of time.
§ I could go on to give other examples of the injustice. However, I think that it would be an insult to the Committee's powers of imagination to take it for granted that Members cannot imagine the number of factors that determine how long a case may last. Noble Lords may consider that justice is obtained where the litigant says this. "Thank you for the advice you have given me. You have told me I have a good case. I do wish to bring it but I shall not do so if that gets me into financial trouble. I can work out what my income and expenditure will be with 109 rather greater assurance than Mr. Micawber was able to do. I can say that I can meet this liability by monthly payments over the next 12 months. But if you tell me that I have some kind of indeterminate period over which I am supposed to find money, I am afraid that that is something I cannot undertake and although you have told me that I have a good case I had better not bring it, or I had better not defend it."
§ I do not know what was wrong with the old rule of 12 months, the determinate payments, and the knowledge of the prospective assisted litigant about the commitment. It is for exactly the same reason that when there is a capital sum to be paid the amendment provides that either it should he paid forthwith or within a reasonable time so that again the assisted litigant knows exactly where he or she stands. There is a commitment to pay that sum by a given date; it can be afforded; it can be dealt with, and it can he budgeted for.
§ Those are the reasons for the amendment. Naturally if in the course of the Committee's discussion any matters should arise on it to which I can address myself in reply I most certainly shall. I beg to move.
§ Lord Renton
It seems to me that the case put forward by the noble Lord, Lord Mishcon, is sound in its merits. However, the question arises: is it a fit subject for legislation? The discretion that will be exercised by the board is plainly stated in Clause 15(3) to which the noble Lord referred. I should have thought that the only extra factor that arises on discretion is the time factor to which the noble Lord very properly and fairly referred. But is that matter not better dealt with by the rules of court? I should have thought that for us to go into this detail on legislation was unnecessary especially when rules of court would be available to achieve the purpose.
§ 5 p.m.
§ Lord Mishcon
I referred to Regulation 44. That regulation stipulates that the contribution payable out of income is to be paid over a period of not more than 12 months. Why alter that?
§ Lord Renton
I was going on to say that in framing rules of court what the noble Lord has said is sensible and should be borne in mind. If any further amendments to existing rules are needed, let that be done at the same time.
§ Lord Ackner
I rise to support the amendment out of the sense that it may cause unfairness unless there is an assurance that what the noble Lord fears will not take place. I have an impression, though I may be quite wrong, that the White Paper foreshadows that this is the type of order that might be made. It could work unfairly in many respects. Let me suggest one or two. A case may start with all proper expedition, get into court, then it is heard that there is judgment pending in the same type of action and therefore it had better be adjourned. It is adjourned, judgment is given and notice of appeal is immediately entered. Again it has to delayed. It may even go to the House of Lords. Such a delay is totally unattributable to the parties or their solicitors, a delay which may involve 110 a legally aided litigant, who ex- hypothesi has a good, arguable case, saying "1 am sorry. I cannot afford to go on making contributions month in month out". In another case it may be decided that the best course is to decide liability first and then quantum of damages if it is appropriate. That will cause delay in the ultimate decision.
I should be happy not to be associated with the amendment if we receive some form of assurance, contrary to the impression I received from a very quick reading of the White Paper, that this is not envisaged.
§ Lord Campbell of Alloway
I agree with my noble friend Lord Renton that the principle of the amendment is entirely sound, but it rather pre-empts the regulations. It would be more appropriate, surely, that a provision of this detail should appear in secondary legislation rather than in primary legislation. But the noble and learned Lord, Lord Ackner, as always, does a signal service in underlining the merits involved. The hope must he that some form of assurance will be given.
§ Lord Renton
I referred to rules of court, but of course regulations would be a perfectly sensible and in the circumstances perhaps a more suitable way of doing it.
§ The Lord Chancellor
Clause 15 establishes that the legally-aided person may be required to pay a contribution towards his legal aid, if he is assessed as eligible to do so. The clause then allows the financial arrangements relating to contributions to be set out in regulations. This seems the most sensible way to proceed when dealing with such detailed matters as these.
I agree with my noble friends Lord Renton and Lord Campbell of Alloway about that. However I do not disguise the fact that, as the White Paper foreshadows what is intended, the regulations will require the assisted person to pay the income contribution for which he is assessed for as long as the case lasts. It is important to remember that there are two distinct contributions: first, the capital contribution. There is no difficulty envisaged between us at this stage about that. In addition to the capital contribution, a prospective litigant applying for legal aid will be assessed in respect of income. The income he will be assessed upon will have regard to his other commitments considered in the regulations, and that will determine the contributions that he will be required to pay towards the case.
Of course it is obviously in the interests of the person paying that he should pay as little as possible. If we could have a system under which he paid just one month's contribution that would be much better for him. On the other hand if we are trying to finance a system of helping people and targeting the help where it is most needed, if a person's income is such that he can reasonably make an income contribution to the costs, there is no reason why it should stop at 12 months. The system is better if the amount available is increased in a way that does not prejudice the person as regards his other commitments. That is the basis upon which the income contribution is assessed.
111 There is no particular virtue in the period of 12 months in this connection, apart from the fact that it has been used in the past. In my view, if we are to have as comprehensive a system of legal aid as is possible, then those who are able to pay contributions will have to contribute.
The proposal in the White Paper was that the income contribution should continue for as long as the case lasted. It is important to remember that nobody is to be asked to pay more than the total cost of the case to the legal aid fund. That is my first point. Secondly, no one will be asked to pay more out of income than it is assessed he can reasonably afford. Thirdly, if the circumstances of the litigant change for the worse in the course of the litigation, then he can have his assessment revised. For example. if a source of income ceases or some obligation which is taken account of under the regulations increases he can have his contribution varied accordingly.
That appears to me to be a perfectly reasonable system. We are not asking the person to pay more than he can afford as assessed in these two ways as to capital and income. The legal aid fund is not making a profit out of him or anything of that sort. Nobody will be asked to pay more than the cost of the case to the legal aid fund. In so far as there is more money available than if the income contribution stopped at 12 months, so much the better for the spread and efficiency of the system.
The noble and learned Lord, Lord Ackner, has pointed out that there are some circumstances in which the case may be continued without any fault on the part of the assisted person. I accept that that is true and I should wish to consider in the detail of the regulations exactly what provisions ought to be made. We have not reached that stage yet, but it does not follow from that that to allow the contributions to continue for more than 12 months would be unfair. That is the only thing that the amendment affects so far as the income is concerned. It precludes regulations providing for income contribution for more than 12 months in any circumstances whatsoever, as I understand it and as it has been explained.
I accept the serious points that my noble and learned friend Lord Ackner has made and I should wish to take them into consideration in framing the detail of the regulations, although one must be careful not to put in so much detail as to make the regulations unworkable.
However, there is another side to this. It has often been argued that assisted persons themselves are sometimes able to behave oppressively in litigation where they are not making any contribution. Certainly husbands in divorce proceedings have often expressed grievance on these grounds. I think that for a solution to those problems, and to the kind of problems raised by my noble and learned friend, we must look outside the legal aid system because they can potentially arise whenever one party in litigation has a large resource compared with the other; either his own resource or one to which he is able to have recourse.
My noble and learned friend Lord Ackner and other Members of the Committee are familiar with 112 the Civil Justice Review. It has been examining whether the court should exercise greater control over the pace of proceedings. I believe that we must look to solutions on those lines, rather than to solving the problems through the rules governing legal aid generally.
However, I accept that there may be situations, even in a perfect procedural climate, in which the kind of problems referred to by the noble and learned Lord, Lord Ackner, could arise. I should certainly wish to consider those in relation to the precise detail of the regulations. However, in my submission to the Committee, the amendment introduces a wholly unnecessary and unwise restriction into the regulation-making powers. I ask the Committee not to accept the amendment.
§ Lord Mishcon
In moving the amendment my worst fears have been realised. I say that with a sense of complete seriousness. Paraphrasing the noble and learned Lord—I hope he thinks fairly— he concluded his remarks by saying that he did not see any sense at all in a stipulation which limited the period to 12 months. Perhaps he will be good enough to explain why, in 1980, the Government saw fit to pass such a regulation limiting the period to 12 months. Perhaps the noble and learned Lord will tell the Committee not only why that was done but also what instances have occurred since then which made the provision a completely wrong provision in his view.
I know that the noble and learned Lord, Lord Ackner, could have continued to give other examples; I said that I could do so. What about the example of the opposing party who knows perfectly well that the assisted person must continue to pay a sum of money out of his income until the case comes to trial? What is the aim of the opposing party who does not have much of a conscience? It is to delay the proceedings for as long as possible in the hope that the assisted person. because of that burden, will give up the proceedings or settle them on terms less than that party should. It is open to all kinds of iniquities and, if I may say so, it shows how bad it is to leave such vital matters—and this is a vital matter—to regulations.
If the matter was left to a regulation, I have not the slightest doubt that when it comes before the House it will he in the midst of other regulations dealing with the question of assessment upon assisted persons and so forth. Members of the Committee will be in no position to say, "The rest of the regulation is perfectly all right but we ask for this provision to be amended". As we discussed yesterday, one cannot do that. Again, it was said yesterday that all one can do is make a speech and hope that the Minister will be convinced.
I have made a speech and some other Members of the Committee have made speeches. It is completely obvious that the noble and learned Lord the Lord Chancellor, as at present advised, is not convinced, except that there might be some provision for a certain class of case within the regulation; although, as he says (again I am paraphrasing) one does not wish to mix up too much with a regulation because otherwise it becomes confusing, misleading, and does not serve a proper purpose.
113 We now have no assurance. In fact, the assurance is in the reverse direction: that the White Paper will be followed; that people will not know of their liability; and that all the decent and caring people of whom we are thinking (not the reckless people) will be deterred in those circumstances from accepting an almost timeless commitment. In saying that they can always apply to have this reduced, or that they can always apply to say that the action is being protracted, I should like to ask what of the unfairness of the case which is fairly easy, although it involves a lot of money, and can be heard rapidly, as against the complex case which cannot? Is there to be a difference between the time of the contribution being made?
Because of the lack of assurance, which I believe that nearly every speaker in the debate called for from the noble and learned Lord the Lord Chancellor, I must press the amendment.
§ 5.16 p.m.
§ On Question, Whether the said amendment (No. 35) shall be agreed to?
§ Their Lordships divided: Contents, 89; Not-Contents, 141.114
|DIVISION NO. 2|
|Ackner, L.||Kilmarnock, L.|
|Airedale, L.||Kirkhill, L.|
|Ardwick, L.||Listowel, E.|
|Attlee, E.||Lloyd of Hampstead, L.|
|Aylestone, L.||Lloyd of Kilgerran, L.|
|Banks, L.||Lockwood, B.|
|Basnett, L.||Longford, E.|
|Blackstone, B.||Lovell-Davis, L.|
|Blease, L.||Mackie of Benshie, L.|
|Bonham-Carter, L.||McNair, L.|
|Broadbridge, L.||Mason of Barnsley, L.|
|Brooks of Tremorfa, L.||Meston, L.|
|Callaghan of Cardiff, L.||Mishcon, L.|
|Carmichael of Kelvingrove, L.||Molloy, L.|
|Carter, L.||Mulley, L.|
|Chitnis, L.||Nicol, B.|
|Cocks of Hartcliffe, L.||Oram, L.|
|David, B.||Peston, L.|
|Davies of Penrhys, L.||Phillips, B.|
|Dean of Beswick, L.||Pitt of Hampstead, L.|
|Diamond, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dormand of Easington, L.|
|Elwyn-Jones, L.||Prys-Davies, L.|
|Ennals, L.||Ritchie of Dundee, L.|
|Ezra, L.||Robson of Kiddington, B.|
|Falkender, B.||Seear, B.|
|Falkland, V.||Sefton of Garston, L.|
|Fisher of Rednal, B.||Serota, B.|
|Foot, L.||Shaughnessy, L.|
|Gallacher, L.||Silkin of Dulwich, L.|
|Galpern, L.||Simon of Glaisdale, L.|
|Glenamara, L.||Somers, L.|
|Graham of Edmonton, L. [Teller.]||Stedman, B.|
|Stewart of Fulham, L.|
|Grey, E.||Stoddart of Swindon, L.|
|Grimond, L.||Strabolgi, L.|
|Hanworth, V.||Taylor of Gryfe, L.|
|Hatch of Lusby, L.||Taylor of Mansfield, L.|
|Hayter, L.||Turner of Camden, B.|
|Heycock, L.||Underhill, L.|
|Hughes, L.||Wallace of Coslany, L.|
|Jacques, L.||Wells-Pestell, L.|
|Jay, L.||Wigoder, L.|
|Jeger, B.||Winchilsea and Nottingham, E.|
|Kilbracken, L.||Winstanley, L.|
|Ailsa, M.||Hunter of Newington, L.|
|Alexander of Tunis, E.||Hylton-Foster, B.|
|Allenby of Megiddo, V.||Ilchester, E.|
|Allerton, L.||Johnston of Rockport, L.|
|Arran, E.||Joseph, L.|
|Auckland, L.||Kimball, L.|
|Barber, L.||Kinloss, Ly.|
|Belhaven and Stenton, L.||Lane-Fox, B.|
|Beloff, L.||Lauderdale, E.|
|Belstead, L.||Lawrence, L.|
|Bessborough, E.||Lindsey and Abingdon, E.|
|Blatch, B.||Long, V.|
|Blyth, L.||Lucas of Chilworth, L.|
|Boardman, L.||Luke, L.|
|Boyd-Carpenler, L.||Lyell, L.|
|Brabazon of Tara, L.||Mackay of Clashfern, L.|
|Bridgeman, V.||Mar, C.|
|Brougham and Vaux, L.||Margadale, L.|
|Broxbourne, L.||Massereene and Ferrard, V.|
|Bruce-Gardyne, L.||Merrivale, L.|
|Butterworth, L.||Mersey, V.|
|Caithness, E.||Middleton, L.|
|Campbell of Alloway, L.||Milverton, L.|
|Campbell of Croy, L.||Monk Bretton, L.|
|Carnegy of Lour, B.||Montgomery of Alamein, V.|
|Carnock, L.||Morris, L.|
|Chelmer, L.||Mottistone, L.|
|Clifford of Chudleigh, L.||Mowbray and Stourton, L.|
|Constantine of Stanmore, L.||Munster, E.|
|Cork and Orrery, E.||Murton of Lindisfarne, L.|
|Cottesloe, L.||Nelson, E.|
|Cowley, E.||Newall, L.|
|Cox, B.||Nugent of Guildford, L.|
|Craigavon, V.||Orkney, E.|
|Craigmyle, L.||Orr-Ewing, L.|
|Craigton, L.||Oxfuird, V.|
|Cranbrook, E.||Pender, L.|
|Croft, L.||Peyton of Yeovil, L.|
|Croham, L.||Polwarth, L.|
|Cullen of Ashbourne, L.||Porritt, L.|
|Davidson, V. [Teller.]||Radnor, E.|
|Deedes, L.||Rankeillour, L.|
|Denham, L. [Teller.]||Reay, L.|
|Denning, L.||Reilly, L.|
|Derwent, L.||Renton, L.|
|Dundee, E.||Rochdale, V.|
|Elibank, L.||Rodney, L.|
|Elliot of Harwood, B.||St. Aldwyn, E.|
|Elton, L.||St. Davids, V.|
|Erroll of Hale, L.||Salisbury, M.|
|Faithfull, B.||Saltoun of Abernethy, Ly.|
|Ferrers, E.||Selborne, E.|
|Ferrier, L.||Selkirk, E.|
|Fortescue, E.||Shannon, E.|
|Fraser of Kilmorack, L.||Stodart of Leaston, L.|
|Gainford, L.||Strathcona and Mount Royal L.|
|Glenarthur, L.||Sudeley, L.|
|Gray, L.||Swansea, L.|
|Greenway, L.||Terrington, L.|
|Gridley, L.||Teynham, L.|
|Haig, E.||Thomas of Gwydir, L.|
|Hailsham of Saint Marylebone, L.||Thorneycroft, L.|
|Hanson, L.||Trumpington, B.|
|Harmar-Nicholls, L.||Ullswater, V.|
|Harvington, L.||Vaux of Harrowden, L.|
|Havers, L.||Wilberforce, L.|
|Hesketh, L.||Windlesham, L.|
|Home of the Hirsel, L.||Wyatt of Weeford, L.|
|Hood, V.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 5.25 p.m.
§ Clause 14 agreed to.115
§ Clause 15 [Reimbursement of Board by contributions and out of costs or property recovered]:
§ [Amendments Nos. 36 and 36A not moved.]
§ Clause 15 agreed to.
§ Clause 16 agreed to.
§ Clause 17 [Costs of successful unassisted parties.]
§ The Deputy Chairman of Committee (Lord Nugent of Guildford)
Before I call Amendment No. 37 in the name of the noble and learned Lord, Lord Denning, I should explain that if this is agreed to I shall not be able to call Amendment No. 38.
Lord Denning had given notice of his intention to move Amendment No. 37:
Page 13, line 18, leave out from beginning to ("; and") in line 21
§ The noble and learned Lord said: We discussed this yesterday. It is part of the group. I do not intend to move Amendment No. 37.
§ [Amendment No. 37 not moved.]
§ [Amendment Nos. 38 and 39 not moved.]
§ Clause 17 agreed to.
Lord Ackner moved Amendment No. 40:
After Clause 17, insert the following new clause:
§ ("Remuneration of persons giving civil legal aid.
§ —(1) A solicitor who has acted for a person receiving legal aid shall be paid for so acting out of the legal aid fund, and any fees paid to counsel for so acting shall also be paid out of that fund.
§ (2) The sums allowed to counsel or to a solicitor in connection with proceedings in the House of Lords, the Court of Appeal, the High Court and the County Court shall be the full amount allowed to taxation of costs.
§ (3) The sums allowed to counsel or to a solicitor in any other case shall be such as may be determined in the prescribed manner.
§ (4) Where a solicitor has acted as agent for another, the sums allowed under the preceding provisions of this section shall be the aggregate amount allowed them, but may be divided between them as they may agree.
§ (5) For the purpose of subsection (1) above counsel's fees shall be taxed as if they had been paid by the solicitor.
§ (6) Costs shall be taxed for the purposes of this section on the standard basis; but no question shall be raised as to the propriety of any act for which prior approval was obtained as required by regulations.
§ (7) The Lord Chancellor, in making regulation for the purposes mentioned in section 32(2)(e) as respects the courts, persons or bodies by whom, and the manner in which, any determinations which may be required for the remuneration and payment of the expenses of solicitors and counsel shall be made, reviewed or appealed, shall require such courts, persons or bodies to have regard to the preceding provisions of this section and to the principle of allowing fair remuneration according to the work actually and reasonably done.")
§ The noble and learned Lord said: This is the first of a number of amendments standing in my name, the succeeding ones also being concerned with the remuneration provisions of the Bill. I should like to make one overriding point which relates to all the amendments that I hope to move, and it is this. Although it was some 17 years ago that I was the elected leader of the Bar, I am not moving these amendments out of some nostalgic loyalty to my profession. I should not like the Committee to think that it is about to witness the rigor mortis of a superannuated shop steward.
§ The basic reason for my tabling this amendment is due—and I hope the noble and learned Lord the 116 Lord Chancellor will notice this indication of harmony at the outset—to my profound agreement with the sentiments of the Government as expressed in their very first response to the report of the Royal Commission on legal services presided over by that eminent chairman the noble Lord, Lord Benson. Those responses are contained in Cmnd. 9077. They were presented by the Lord Chancellor in November 1983, which is not so long ago, and as it took some three years for those responses to be worked out I imagine that great thought was given to them and they are unlikely to be departed from.
The first response I quote is this:
The existence, strength and vitality of an independent legal profession, and public confidence in it, are fundamental to our freedom under the law".
On 4th June 1986 in a debate initiated by the noble Lord, Lord Benson, to call attention to the current concern about the provisions of criminal legal aid and the need to consider ways of improving the system for negotiation of fees, 12 of your Lordships gave the Chamber the benefit of their views. No doubt some reference will be made in detail to those views when the Committee comes to consider Amendment No. 55, which stands not only in my name but also in the name of the noble Lords, Lord Benson, Lord Meston and Lord Seebohm. All of your Lordships were unanimous on a number of matters but on one in particular. That is that if the legal aid scheme—one of the greatest social reforms since the last war—offered no more than a second class service (or, I would add, second rate, because that is the right description of a second class service) that would be a disaster.
§ The strength and vitality of the profession are thought by the Government to be essential. It would not only be seriously weakened but public confidence in it would be killed. Our concept of freedom under the law would thus be seriously damaged. I have no doubt that the then Lord Chancellor, my noble and learned friend Lord Hailsham, who took part in that debate, is of the same view, as I am absolutely sure is also my noble and learned friend the present Lord Chancellor.
In another response, which I quoted in the debate on Thursday—I thought it had been given some six or seven years ago instead of barely four years ago—the Government asserted:
The Government believes that legal aid should be available to assist those of small or moderate means, by giving them"—
and I now emphasise the following words—
the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately''.
To my mind that is as clear a statement as one could ask of the entitlement of our fellow citizens whose circumstances require them to rely upon legal aid for access to the courts; to receive a standard of advice and representation no lower than that which they would have received if they had been able to pay for it.
Consistent with the sentiments just quoted, in the same Command Paper at page 15 the Government answered with the following words the
recommendation of the Benson Commission that the rates of remuneration for legally aided work should be fixed at a reasonable level and kept up to date:
The Government accepts that legally aided work should be reasonably remunerated".
By the medium of this and the other amendments in my name I hope I shall be able to justify to the Committee my deep anxiety that the Government no longer intend to adhere to the views they expressed either in regard to,
the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately",
or that legal aid work should be reasonably remunerated, which provides the same chance to which they referred. I hope to establish that one, if not the main, purpose of the Bill is to provide a cut-price service and therefore inevitably a second-rate service with all the serious consequences mentioned in the debate in June 1986.
§ This amendment is directed, as the side note indicates, to civil legal aid. Why civil legal aid requires a different position from criminal legal aid needs a little, and slightly technical, explanation. As matters now stand lawyers' legal aid fees are subject—and I emphasise this—to independent assessment. It is an assessment which is done essentially by judicial officers, not civil servants with no legal knowledge, not members of the executive, but independent legal officers. The overall target at which they strive is to achieve fairness. The method of assessment varies in criminal and civil work for the following quite simple reasons.
In civil work there is almost invariably an assessment, called a taxation, by the courts of the costs that a losing party should pay to the winner. This is a broad explanation. The usual order is that the costs be taxed on the standard basis and the words of Order 62, Rule 12, provide:
On a taxation of costs on the standard basis there should he allowed a reasonable amount in respect of all costs reasonably incurred".
That is something which no one has found any difficulty in applying as a general principle though it varies from case to case and occasionally gives rise to some difficulty.
The taxing officer, who is almost invariably a solicitor and much experienced in this field of work, is required to have regard to certain factors. I shall not worry the Committee with them; they are currently set out in Appendix 2 to Order 62, which provides that in exercising his discretion the taxing master—I again emphasise these words because they are mandatory—
shall have regard to all relevant circumstances and in particular to—
certain factors are then isolated—
with a view to achieving fairness, complexity, difficulty, novelty, skill, special knowledge required, weight of the case, importance to the client, value of the property in issue",
and so on. As a matter of convenience and to avoid duplication it has been a long-standing arrangement for civil legal aid costs to be assessed also by the taxing master. In the old days there used to be a difference between party-and-party costs and common fund. The Committee need not be worried
with that complexity because it has gone; it is all on the standard basis unless there is a special order.
§ That is the basis upon which costs in the ordinary civil cases have been dealt with. In criminal legal aid there is very seldom a party-and-party taxation because costs are seldom awarded between the parties. Accordingly different arrangements are necessary. Remuneration is fixed by a court official, who I believe now enjoys the title of a determining officer, applying regulations issued by the Lord Chancellor—again I emphasise—with the right of appeal to the taxing master.
§ It was in this context that in Section 39(3) of the 1974 Act Parliament directed that in making regulations there was a dual obligation; the obligation on the Lord Chancellor and on any person by whom such amounts fall to be assessed that the regulations should have regard to the principle of allowing fair remuneration according to work actually and reasonably done. No problems appear to have arisen in that concept though there have been some difficulties in ensuring that matters are kept up to date.
§ Following negotiations with the Lord Chancellor's Department in recent times standard fees—I think perhaps a better description is "prescribed rates"—have been agreed for about 90 per cent. of criminal work. That is because in criminal cases you can fairly simply identify the relatively "un-numerous" units of work, as I believe the on-going jargon is. That still enables taxation to be asked for if it is considered that the prescribed rate is not sufficient.
§ In civil cases there is such a wide diversity in range of work; I need only refer to the categories of work such as Admiralty work, patent work, copyright work, commercial work, passing-off actions and the like. However much, I respectfully suggest, the Lord Chancellor's Department would wish to, you cannot hope to identify many units of work in such litigation. Of course you can in the running down case, which is a stock type of case, or the industrial injury case, and it has been done. But it is apparently the desire of the Lord Chancellor's department and the Lord Chancellor to seek to apply the standard fee to 75 per cent. of all cases within the next two years.
§ I am told that some progress has been made in the matrimonial work because again you can identify units, but, to give the Committee an indication of how imprecise some of these standard fees can be, there is only one item for paperwork, and that is £33. How on earth anyone arrived at £33, or what on earth use it has as an indication, I do not understand. Paperwork can comprise drafting an affidavit of one page or 100 pages; advising on evidence of one page or 50 pages; advising on quantum in a difficult matrimonial financial contest or in a simple one. But apparently bureaucratic tidiness is satisfied by having achieved that there is one item of standard fee in the matrimonial field, £33.
The reason for all of this is that a Lord Chancellor's and Treasury committee—I think it is called the scrutiny team—has expressed a view, which I think is the view which must be the view adopted in the approach to this legislation, in these terms:
In buying legal services, as with the purchase of other goods and services from the private sector, the Government should be looking to obtain the services of the quality"—
and I now underline the words—
it needs as economically as possible.
Not what the litigant needs but what it, the Government, needs. This analogy with the supermarket is probably responsible for how well the supermarket is represented on the committee dealing with the civil justice review.
I continue to quote from that report. To achieve this objective the proposal is that:
all rates of remuneration should be set on a national basis by the Lord Chancellor's department".
The next objective I quote is
to permit rates of pay for legal aid work to be set by regulation"—
and again I emphasise—
at different rates from those set for privately-funded work.
There is the rub. The right to receive the same standard of service is an essential part of the legal aid system. How, anyone, particularly those who talk in terms of buying services as if they were goods and commodities, can think that they are going to obtain the same quality in goods and services without paying the same, or an analogous, price is difficult to follow. Those of small or moderate means are apparently not to have:
the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately".
§ The attempt made in this amendment is to put back into the legal aid scheme that which exists at the moment. I need not go line by line through this amendment because it follows, with appropriate alterations to bring it up to date, Section 10 of the Act of 1974 and the second schedule. It is to ensure that there is brought back into this Act in regard to civil litigation the obligation upon the fund to pay to those providing civil legal services the sums that are allowed on taxation. A procedure designed for fairness.
It is true that the recommendation of the scrutineers—if that is the right description—that assessment of fees should no longer be part of a judicial process but should become part of an administrative process is not accepted outright in the White Paper, but the White Paper at paragraph 50 says:
Once the wider introduction of standard fees has simplified the taxation of bills, the Government considers that it might be sensible for these to be assessed by County Court staff"—
those are civil servants with no legal qualifications—
rather than, as at present, by County Court registrars"—
who are of course solicitors. It goes on:
This would be similar to the system of payment in criminal cases, and would reduce the burden on Registrars. Timing and other details will be discussed with the relevant trade unions and other interested parties before steps are taken to bring this change into effect.
In regard to the present situation it is stated in paragraph 51:
The Government considers that there is a continuing need for an independent appeal mechanism on assessment of bills. It therefore proposes to retain the present arrangements for appeals to the Taxing Master. However, the Government does not rule out change in this area, and would be prepared to consider alternative proposals, for example that appeals against assessment should be heard by the Legal Aid Board"—
which I understand is unlikely to have even one member of the Bar upon it.
The Government intends to ask the Board, once established, to consider this".
§ I hope that this amendment will give the Lord Chancellor an opportunity to explain in perhaps some detail the radical basis in the remuneration of the profession which his department has in mind, thus enabling us to pierce the regulatory veil and get the flavour of that which most of us would have wished to have seen in detail in the primary legislation. However much my noble and learned friend the Lord Chancellor may disagree with what I have submitted, I hope that at least on this occasion I have made myself clear. I beg to move.
§ 5.45 p.m.
§ Lord Denning
Let me say that in a way I think this amendment goes much too far in favour of the legal profession. I am sorry to have to say it but I have to tell the Committee of a matter of taxation of costs that we had to deal with in the Court of Appeal.
It happened in Swanage. A man who dived off a board in Swanage hit his head on something on the bottom of the sea and was severely injured. He brought his claim for negligence against the council, claiming that it was its fault that there was something on the bottom of the sea on which he broke his head. He got legal aid for the purpose, if you please, but he failed.
In those circumstances, what was the position? No costs were being awarded against the legal aid fund, but his solicitors and counsel of course wanted their costs from the Government or from the legal aid fund. They put in their bill and it went before the taxing master. There was no one to oppose it and the taxing master felt that he ought to do something himself. What happened? About nine months after the accident happened an expert was sent down, by which time the obstacle had been removed and the site could not be seen as it was at the time. He went on two occasion at great expense. Not only that but leading counsel and junior counsel were brought in. Was that necessary?
The taxing master himself thought he ought to go into it to see whether the bill was reasonably incurred. There was no one to speak against it but he did what he could. After he had knocked it down a little the solicitors appealed to us to restore their original bill. In the Court of Appeal I said that it was most unfortunate that there was no one to speak against the bill and that the taxing master was absolutely right to inquire into it as best he could, unequal as it was. That example is just to show the Committee that in legal aid matters the bill is put in by the solicitor on behalf of himself and counsel whom he has instructed and there is no one to check it and oppose it except the taxing master, who has to do that as best he can.
I submit that that is wrong and its shows the difference between legal aid taxation, when the solicitor and counsel want to get the cost of the litigation, and other litigation, when the solicitor's bill is always taxed by the other side. Then it has to be paid. That is one important distinction which I draw in this claim for the right to have legal aid taxed on the full basis when there is no one to oppose it.
121 I must add another point in my disquiet about this proposal. It must be remembered that this gives the solicitor and counsel whom he instructs an interest in promoting the case which may conflict with his duty. How easy it is. The poor person goes to the solicitor and says, "I want to bring an action. I have been injured in an accident". The solicitor says, "Can you afford it yourself or not?" The man asks, "Can I get legal aid?" The solicitor replies, "Oh yes, if there is a reasonable chance of your succeeding". "What if I lose?" The solicitor says, "Don't worry about that. You do not have to pay any costs even if you lose". That is what he tells the legally aided client. The lawyer says, "We shall have to look into it to see whether you have a reasonable case. Let me see your witnesses. Let me see your statements. If the case is good enough—and there may only be an even chance—we shall get legal aid for you". So it goes on.
The solicitor is interested himself in getting legal aid for his client because he will also get the costs and the fees at the end of the day. There is nothing to lose. The client has nothing to lose. The solicitor and counsel have nothing to lose. I stress this point in order to show that there is an interest which may conflict with duty.
It is very different when a man is not legally aided. Let us take the case of a man who is just over the legal aid limit. He may be a small tradesman or a professional man but he is just over the legal aid limit. He is involved in an accident. He goes to the solicitor and asks, "What about bringing an action?" The solicitor says, "You have an even chance of winning". The man asks, "What will happen if I lose?" The solicitor says, "You will have to pay all the costs of the other side. There is always that risk, you know. I really could not advise you to go on with this action when if you lose you will have to pay all the costs of the other side". Many a person just over the legal aid limit will say, "I cannot take the risk on my own"; whereas the legally aided client will say, "That's all right. I am no worse off. If I win, I get damages. If I fail, I do not get the costs".
That is the dilemma. The solicitor is in a difficult position in advising because he has an interest—and he is absolutely honest—in saying that this is a good legal aid case. I throw that out in addition to the other point I mentioned only to show that legal aid litigation is very different from that which is not legally aided. This amendment tries to put it on the same basis as other litigation. It would he not altogether right to put that into this Bill.
§ Lord Meston
I support the amendment and in so doing declare an interest as someone who is in receipt of legal aid from his professional practice.
On the first day of the Committee stage of the Bill the noble and learned Lord the Lord Chancellor reminded us that the main source of legal advice is and will remain under this Bill the independent legal profession, the private practitioner. It is important to remember that this is a public service which depends on private practitioners. It is not in the interests of the public to reduce the quantity and the quality of lawyers prepared to do legal aid work. I suggest that 122 the quantity and quality will be reduced if practitioners lose confidence in the legal aid system and in its funding.
The noble and learned Lord, Lord Denning, spoke about litigation which is improperly brought, and that of course should be a matter for taxation. With respect, I would suggest to him that it is irrelevant to the argument surrounding this amendment, which is concerned with fair remuneration. I question what he has just said, that somehow the practitioner dealing with legal aid work has a greater interest in that litigation than in any other form of litigation. In either case he is entitled to fair remuneration. With respect again to the noble and learned Lord, he overlooked the fact that the great majority of legal aid practitioners recognise that not only do they have a duty to their client as in any other case but they have a duty to the legal aid fund. They recognise it, respect it and take steps to put it in practical terms when applicable.
At Second Reading the noble and learned Lord, Lord Denning, reminded us of his experience of young barristers, before legal aid, waiting for dock briefs. It is at the Bar and in the solicitors' profession, I suggest, where young people learn the important lesson at an early stage that the world does not owe them a living. Young lawyers, particularly those in London, are still as exposed to great pressures of financial stringency as in the days of the noble and learned Lord, Lord Denning. Indeed, it is not just a question of the young barrister or the young solicitor. There is a broader concern in modern circumstances. We are faced not only with the risk of losing young practitioners but also with the risk of losing senior, more successful, practitioners who ought to be the backbone of a properly run legal aid system. Those who remain in the system, not giving up because they find other, fatter fish to fry, will be tempted to cut corners and work less efficiently. A second-rate inferior system is not a cost-effective service.
Earlier amendments have been met with the argument on a number of occasions during this Committee stage, "Well, there was nothing like them in the previous legislation under which legal aid has worked perfectly well". That argument cannot be advanced in answer to this amendment. Fair remuneration exists in the present legislation; moreover, fair remuneration is a concept expressly acknowledged in the White Paper. The fact that it is in the existing legislation and that it was recognised in the White Paper reinforces the concern that has been expressed at its conspicuous absence from the Bill.
At Second Reading the noble and learned Lord the Lord Chancellor said that the concept of fair remuneration was left out because it was too uncertain. He preferred to have a list of factors governing the provisions of the remuneration which appear in Clause 32(6). There is nothing inherently wrong with a list of factors if they are used to define and refine the concept of fairness. But they do not do so. There are at least three things wrong, I would suggest, with the contents of Clause 32(6). The word "fair" is missing; the list is not definitive; and it is not mandatory. The reason for that is that the expression is used that the Lord Chancellor, 123shall be entitled to have regard, among the matters he considers appropriate, to".Then there is a list running from (a) to (g) of a number of factors.
§ 6 p.m.
§ Lord Ackner
If the noble Lord will allow me to intervene, in my address to the Committee I carefully avoided dealing with Clause 32. That is the subject matter of detailed amendments. I had hoped that this could be dealt with in a self-contained statement; otherwise, there will be a constant repetition of the same points.
§ Lord Meston
Of course I accept the noble and learned Lord's point. I shall not dwell further on Clause 32(6) save only to say that there is concern about it. As the noble and learned Lord has said, that is reflected in future amendments; therefore, I will not anticipate those.
The fact of the matter is that the private practitioner is entitled to assume that he will be fairly paid. That should be on the face of the Bill. If it were to be on the face of the Bill it would restore the confidence of the professions in the Bill and in the legal aid system, and it would ensure the calibre of the practitioners in the future. This is not just a moan by lawyers about their remuneration. It is a matter of wider public importance.
§ Lord Campbell of Alloway
It would have been my wish to support this amendment as I share the anxieties expressed so well by the noble and learned Lord, Lord Ackner. Of course I declare an interest, as in the case of the noble Lord, Lord Meston.
The difficulty is that a constitutional problem arises because of the element of pre-emption of the future allocation of public funds. This arises under subsection (7) which refers to the regulation for the purposes mentioned in Clause 32(2)(e). The broad constitutional question is whether, as regards any future allocation of public funds for any specific purpose, pressure should be put on the Treasury, indeed, upon the Government, by legislation which enables any Minister—here, the Lord Chancellor—to be amenable to judicial review in respect of a composite ministerial decision taken in Cabinet as regards the allocation of public funds.
As to the anxieties of the noble and learned Lord, Lord Ackner, which I share, it is the plain duty of any government to ensure that the levels of remuneration under Clause 32(2)(e) are adequate to support the efficient working of the scheme. It is right that pressure both inside and outside Parliament should be brought to bear at all times on government to ensure that the levels set by the Lord Chancellor are adequate to maintain satisfactory standards and to avoid any incipient degeneration of the service. But surely it would be wrong in principle to seek to pre-empt allocation of public expenditure by rendering the noble and learned Lord the Lord Chancellor subject to judicial review as regards the actual decision to set the level, albeit contained in the regulation, referred to in Clause 32(2)(e) imported by subsection (7) of this amendment. That setting of the 124 level is not in truth the decision of the noble and learned Lord the Lord Chancellor; it is a composite ministerial decision taken in Cabinet as regards the allocation of public funds. This would be contrary to our traditional process and system of government, since it exposes the high office of Lord Chancellor to unwelcome indignity in a situation where it is accepted that his hands are tied by the composite Cabinet decision.
Quite apart from the unreality of such a situation, your Lordships' Committee may well think it unfair that the noble and learned Lord the Lord Chancellor should be singled out for such exposure and, indeed, that other ways of putting pressure on the Government—which ought to be and must be put on the Government—are preferable and more appropriate.
In conclusion, it is accepted that a distinction has to be drawn between preliminary steps in the decision-making process which lie within the exclusive province of the noble and learned Lord the Lord Chancellor, such as—to give but one example and leave it—consultation before making regulations as provided in Clause 32(7) and which are and should remain subject to judicial review, and the actual decision to set the level affecting the allocation of public funds which is the composite ministerial decision. Mindful of this distinction, I regret that I am unable to support the amendment on constitutional grounds.
However, in practical terms there is another aspect. What is,fair remuneration according to the work actually and reasonably done"?It is an extremely difficult question for any court in judicial review proceedings. The court in the prior judicial review proceedings did not enter into this question and it is very much doubted whether it could have done so. It stopped short on the issue of failure to consult, there being a reasonable expectation of consultation.
So the building in of the judicial review process, which would happen if this amendment were to be accepted, would not be in accordance with our traditional process of government as regards the allocation of public funds. As regards fair remuneration, it might well be impractical and unworkable, and the position of consultation is fully safeguarded in the Bill as it stands. On those grounds I am forced to oppose the amendment although I have much sympathy with it.
§ 6.15 p.m.
§ Lord Griffiths
I support this amendment, because if the Government decline to pay what I will call fair market rates for legal aid work I fear that there will he a very serious fall in the standard of representation available to those who are currently represented under the legal aid scheme. We are talking about civil legal aid, and let us be clear what we are really talking about. We are talking about helping plaintiffs. Not many defendants receive civil legal aid in the High Court. Why not? It is because you do not sue people who require civil legal aid as they do not have the 125 money to be worth while. I am talking about civil legal aid, not matrimonial legal aid. That is an entirely separate question.
Dealing with civil legal aid, you are dealing with an assisted person against an unassisted person, and if we are talking in terms of reality the vast majority of those people in the High Court who receive civil legal aid are people who have been injured in accidents, in all sorts of different circumstances—accidents on the roads, accidents in the home, accidents in work, and so forth. Those people will have as their opponents insurance companies, and the insurance companies will pay their legal advisers the going market rate.
At the moment, bar the 10 per cent. deduction, those who act on behalf of the injured who are receiving civil legal aid are themselves being paid the going market rate, which is fixed, as my noble and learned friend Lord Ackner has explained, through the medium of taxation by skilled taxing masters. My noble and learned friend Lord Denning made the point that the taxing masters took their duty very seriously, because they were prepared to reduce a bill albeit that it was not even opposed. They are the skilled watchdogs and they set the rates. This amendment merely continues the system which we have had up to date and the system which I believe has worked very satisfactorily indeed.
However, it is quite clear from the White Paper that the Government are fearful that they are paying too much. Otherwise why should they wish to depart from the market rate? So I start from the premise that the Government in future, by fixing their own rates, intend to pay significantly less. Otherwise I can see no point in interfering with the system which has worked satisfactorily now for some 17 years.
If that is done, it seems to me quite inevitable that the cream of representation will be on the defendant's side earning the going market rate, and plaintiffs will have to look to lawyers who are prepared to work for significantly less. It is idle to think that they will have the same quality of lawyer available to them. The result of this will also be a serious imbalance in our trial system.
Those who criticise the advocacy system—and on the Continent there are many—say that your chances of success depend not so much on the merits of your cause as on the strength of your champion. We answer that by saying that in fact the market regulation operates so that in a given case adversaries are evenly matched because the market rate applies to either side; so that in the very expensive litigation you get expensive counsel on either side, and so you go down the scale but with a matching.
Occasionally of course you get the clever high flyer on one side who upsets the balance, but we judges are all poachers turned gamekeepers and we can usually cope with that situation. But it would be a different situation if, in the run of the mill case, you always had much better representation for the defendant than for the plaintiff, and that would cause a serious imbalance in the trial process. I am fearful that departing from the present system and, as it were, creating a lower grade of lawyer, a lower-paid lawyer, to do the plaintiffs' work will result in significant injustice to many of those plaintiffs.
126 The other area in which you find that legal aid is being increasingly granted is judicial review. What is happening in judicial review'? Some poor individual is taking on central government, local government or some other department of bureaucracy. They have available to them the finest advice. They pay the market rate. But is it now to be that whoever are to represent those who are taking on these powerful institutions are only to have access to lawyers who are prepared to work for significantly less than the market rate? Of course you will find those lawyers. When one tries to argue, "Oh, but you won't he able to get representation at this level" the Treasury will say, "But you can. Look, you get it". But you are not going to get comparable quality representation, and that would have a disastrous effect on the operation of this scheme. I think the statistics show a high rate of success for legally assisted persons—
§ Lord Griffiths
—and that being so I cannot believe the savings are going to be very significant. But the potential damage is tremendous and I foresee this scenario eventually possibly developing like this. Because of the poor remuneration paid to legal aid lawyers, lawyers are not properly prepared to do legal aid work. The Law Society and the Bar worry about that fact. What will happen'? The only alternative is the contingency fee system. If we are not going to provide proper legal aid, the only way we can help people is by a contingency fee system. If that is introduced, we shall run into all the horrific problems that they are encountering on the other side of the water.
Clause 32 raises separate points which I am not going to touch. My broad objection to this provision is the lowering of standards I see in plaintiffs' representation.
§ Lord Hailsham of Saint Marylebone
I had not intended to take part in this debate for reasons which may be obvious to the Committee. However, I think I ought to say something about the words which have just fallen from my noble and learned friend Lord Griffiths. He and I have been opposed to each other at the Bar on many occasions, as indeed on one famous occasion were my noble and learned friend Lord Ackner and I. I found them to be notably skilful, attractive and honourable opponents.
However, I do not believe that the profession to which I have belonged since 1932—my father belonged to it from 1903—would ever act in the way in which my noble and learned friend Lord Griffiths supposes. I acted for years under the existing legal aid scheme in civil and criminal matters. I regarded myself as bound by what at the Bar we call—I do not think the solicitors have the same phrase, but they will still recognise it—a taxi-cab rule.
If my time was available I made no distinction between whether I was appearing for an insurance company as a defendant—as I frequently did in personal injuries cases—or whether I was appearing for a legally aided plaintiff. It made no difference whatever whether I was briefed for the prosecution or 127 for the defendant. I appeared impartially according to my availability for work. I believe that the profession of which I am proud to be a member will always, whatever the result of the amendment, whatever the type of remuneration available and however it is arrived at, continue to abide by the taxi-cab rule. Although I would never have claimed to be in the class of some highly remunerated counsel, I believe that I gave service to whichever side I represented.
I say to the noble Lord, Lord Meston, that my noble and learned friend Lord Denning, on Second Reading I think it was—earlier in these debates—was right when he described how we acted for impoverished plaintiffs, without any remuneration, under the poor persons rules, and the kind of remuneration we received under the Poor Prisoner's Defence Act and the dock brief system. It was just as he said. Whatever the noble Lord, Lord Meston, may suppose, the Bar and the solicitors' profession have gained enormously from the introduction of legal aid. They gave their services, sometimes at a loss but virtually free, in those days rather than see persons who could not afford representation not have it.
It is a real disservice to the legal profession to suggest that if the amendment is not passed there will be a different kind of lawyer who does the remunerated work for insurance companies and the legally aided work for assisted plaintiffs. I do not believe that that is true. I say to the noble Lord, Lord Meston, that the Bar has doubled in size since I first became Lord Chancellor; and the solicitors' profession—although I cannot give the figures—has greatly increased in numbers. I could ascertain those figures but I do not have them in my head. Those are not the marks of a declining or under-remunerated profession.
Having said that, I should like to add one or two rather simple points about the general philosophy behind the amendment. My noble and learned friend Lord Griffiths said that in the amendment we were not concerned with matrimonial proceedings. I thought—I may be wrong, and I shall be corrected if I am—that we are concerned with matrimonial proceedings in the amendment. In my understanding of the business, the bulk of legally aided work in the civil field, as distinct from the criminal field, is matrimonial.
§ Lord Ackner
My noble and learned friend invited interruption or I should not have intervened. He is right that the phrase "civil litigation" includes matrimonial cases. Since drafting the amendment, I understand that there has been a considerable move towards the standard fee in matrimonial work. I understand that regulations are about to come into force to provide for the taxation of those fees in every case. Therefore, they are not of the concern that I ventured to suggest, or had in mind, with regard to ordinary civil non-matrimonial matters.
My points of principle, even though the drafting extends to matrimonial proceedings, are designed to focus upon civil litigation of the non-matrimonial kind which is of a highly diverse character.
§ 6.30 p.m.
§ Lord Hailsham of Saint Marylebone
I know that the Committee will be greatly indebted to my noble and learned friend for his intervention and the information which it contained. I do not think it would have had that information but for what he has just said. Far from invalidating what I was about to say, it rather increases its importance and underlines the case which I was about to put forward. In the amendment, and in its wording, we are concerned with matrimonial litigation, as well as with personal injuries litigation. After having said what I did in respect of remarks made by my noble and learned friend Lord Griffiths, and other remarks which have fallen during the debate, I say that remuneration presents difficult and delicate constitutional problems. My noble friend Lord Campbell of Alloway made that point and it is one which must be borne in mind.
I hope that nothing I say to my noble and learned friend the Lord Chancellor will undermine what I said—I think it was in answer to an earlier debate when I was Lord Chancellor—when I stood by the principle of fair remuneration for work actually and reasonably performed. The, question is how one ascertains that and not whether one accepts the principle.
It is, I think, just for the Government to have endeavoured both here and in a subsequent part of the Bill, which we are deliberately not discussing, to spell out the kind of factor which the Lord Chancellor is entitled to take into account in fixing what is fair remuneration and how to achieve it.
My next point concerns civil litigation which is contested. In the kind of personal injuries case considered by my noble and learned friend Lord Griffiths, taxation—the basis of the amendment—is a contested process; that is to say, it takes place inter partes. Nobody attacks or criticises the expert knowledge and experience of the taxing master. However, in contested litigation, the taxation is a contested matter. The party who may be having to pay the bill has obvious designs to knock it down, and the taxing master then hears both sides.
However, in many legally aided cases, first of all in the civil litigation which is not contested or where the defendant does not have to pay, it is true that the taxing master has to arrive at his own decision without the aid of contests between two counsel. This is particularly true in relation to matrimonial cases, not because there are not two hostile parties (there may be and in many cases there are) but in the sense in which I am now describing it when the contested taxation takes place with one party unassisted and the other party assisted. In most matrimonial cases, 90 per cent. or thereabouts, both parties are assisted. Therefore, although the taxation takes place, both parties have the same interest which is not to knock down the bill.
There must be some way in which the interests of the public are maintained in those circumstances. To say that the full amount of the taxation must be paid and that one relies entirely upon the expert knowledge of the taxing officer, though he be legally qualified and absolutely honest and impartial, is, I 129 suspect, not really good enough. Almost in parenthesis, I would point out something which none of the advocates of the amendment has either referred to or admitted but which is highly relevant to what we are discussing. Up to and including the present time—my noble and learned friend the Lord Chancellor will correct me if I am wrong—legal aid in civil cases has been knocked down by 10 per cent. from what my noble and learned friend Lord Griffiths calls the market rate.
That was the rule under which I operated at the Bar. The Bar and the solicitors' profession gave their services for 10 per cent. less than they were worth. While I was Lord Chancellor I had some difficulty with this and my noble and learned friend who is my successor has succeeded in the achievement, if it be an achievement, that the 10 per cent. allowance has gone. Of course, this is of vital importance in assessing the amendment. There was the automatic reduction of what my noble and learned friend called the market rate up to and including the present moment. But now it has gone. What we are discussing is the payment of what I would call fair remuneration which is 100 per cent. of the full market rate.
I want to make another point in relation to this matter. Although I did my best to reduce delays—I believe that steps are being taken to reduce them even further— there was, and still is, a perfectly legitimate complaint on the part of the Bar and solicitors. It is that the Treasury or the legal aid fund, or whoever was paying the remuneration for solicitors and barristers, was doing so about two years after the money had been earned. The result was that they were paid in depreciated currency as we were suffering from an inflation greater then than, happily, it is now. But even if the situation were as of now, they are still paid, sometime, in arrears in a currency that has depreciated by a degree of inflation.
For some reason the two trade unions, the Bar Council and the solicitors' profession, never really made the best of that. It was very largely I myself, with a good deal of blood spilt on the ground, who began to get what seemed to me to be a reversal of what was admittedly a disreputable practice. One of the astonishing and unexpected results of the first tranche, which was pitiful enough, was that my daughter who practises in the same division as the noble Lord, Lord Meston, received a cheque for £12,500 which had been overdue for more than a year. I think both the trade unions rather failed in their duty to their members in not putting that at the top of their grievances. They left it to the unfortunate Lord Chancellor, about whom they were full of complaints, to get it remedied on their behalf.
However, this brings me back to the principal point up to which I have been leading. A later section of the Bill lays down that the Lord Chancellor should consult the two trade unions concerned—the two professional bodies concerned—the Law Society and the Bar Council. That is absolutely right. It is the only way in which this matter can be honourably and properly discharged.
What is fair is very difficult to ascertain. It must be done by agreement or the profession will he the first to suffer. My noble friend Lord Campbell of Alloway 130 quite rightly drew attention to the constitutional practice, clearly allowed for in a later section of the Bill, that what is paid out of the legal aid fund is paid out of moneys provided by Parliament and that moneys paid out by Parliament are voted by the House of Commons, not by this House. They are very largely determined after negotiation between the Treasury and the spending departments. In this respect I must tell the Committee what it probably already knows. The spending departments are the great enemies of each other. One knows in practice that every penny one squeezes out of the Consolidated Fund for one's own clients, if one is a spending Minister—and the Lord Chancellor is an important spending Minister—must be extracted not only from the Treasury but from the rival claimants to the common Consolidated Fund.
I question very much whether those who support this amendment or the two professional bodies have really taken this in mind because there is a deplorable ignorance among professional people of some aspects of our constitutional law. My own feeling is that this is the way forward. It is for the professional bodies to negotiate with the Lord Chancellor. It is useless to throw bricks at the Lord Chancellor as if he were an absolutely free agent to dole out such money he might think suitable as remuneration. He must negotiate it with his colleagues. Whatever may be the fate of this amendment I shall follow my noble and learned friend's speech very carefully before I make up my own mind because I want to do what is right. However, I rose not to make this somewhat discursive oration but to say that I simply do not accept what my noble and learned friend Lord Griffiths said about the way in which the profession would behave if they did not get exactly what they wanted.
§ Lord Wigoder
I have no interest to declare but perhaps I may simply make two very short comments on the argument put forward by the noble and learned Lord, Lord Hailsham. The first is that as the gap grows, if it grows, between legal aid fees and private fees, it is quite inevitable, quite natural and quite understandable that some members of the Bar will cease to do legal aid work. It is quite inevitable that they will be the more competent and the more successful members of the Bar.
My other comment is simply that in practical terms many briefs are delivered to chambers and are then allocated by the clerk of the chambers, both criminal and civil work, in agreement with the solicitor. It is again inevitable that if there is a gap in the fee structure the clerk will direct the better work, the private work towards the more competent and the more outstanding of the members of chambers and the less well paid work will inevitably go to the remainder. I venture to suggest that the noble and learned Lord, Lord Griffiths, is quite right in the general proposition that if the gap is allowed to grow legal aid will become a second-class service.
§ Lord Denning
I wish only to add a footnote to what my noble and learned friend Lord Hailsham of Saint Marylebone has said. I did not practise at the Bar in the days of legal aid. Before the advent of legal 131 aid I did many cases for nothing. I defended dock briefs and I also defended cases at higher levels but the fees often depended on the means of the individual. Often my clerk said to me that he was afraid that a particular individual did not have much money and then asked me if I would please not let that deter me from doing my duty. It was my duty and I used to take it on even at a lesser fee. I do not know whether that made me a second-rate advocate. At all events perhaps the most important case that I did for nothing was an appeal to this House when we succeeded in reversing a decision of the Court of Appeal. I did that for nothing because I felt that it was my duty as a member of the Bar. As my noble and learned friend says, one must do what one feels one's duty is and represent one's counsel to the best of one's ability. I hope that I was not a second-class advocate on that occasion.
§ Lord Mishcon
I intervene only for one moment as my own profession has also been mentioned. What the noble and learned Lord, Lord Griffiths, said was absolutely correct. The Committee must forgive me for repeating a phrase that I used before but if one looks at what is happening "on the ground" I would say to the noble and learned Lord, Lord Denning, whose altruism I shall always respect, that the situation became very different once legal aid was created.
In the old days when the idealism of the profession was appealed to, many of us, especially those practising as I used to when I was a youngster in a very poor area, were content to do work quite literally for nothing. Then came legal aid and we were told that charity was not wanted any more. We were told that the gates of justice must be open to everyone regardless of their means and that the state would ensure that that was done. As soon as the state took on that obligation, quite frankly idealism flew out of the window to a very large extent, because it was thought in the profession that if that was a state obligation the state must pay fair remuneration. If that was not being done it was considered that the state was to blame. That is the distinction that we are dealing with today.
What is happening today in my own profession is this: we are not growing as a profession. We have approximately 10 times the number of members at the Bar. The number of practising members of our respective professions stands at about 40,000 as compared with about 5,000 in the past. But we are not growing; in fact the recruits are dropping. I am not talking about the people who practise in the City and the West End of London. I should be a humbug if I did not say that they are doing very nicely, thank you. In the main, I am talking about the people in the suburbs of London, in the rural areas, in little villages and towns throughout the land, who are doing a lot of legal aid work. The reports that are coming into the Law Society are that those people are accumulating overdrafts that they cannot meet, that the legal aid sums that are being paid do not cover their overheads in many cases and that they are saying as a result that they had better try and get private work and possibly abandon some legal aid work.
132 We do not want that, because, as I understood the noble and learned Lord, he did not say that the people who are pretty well off in either profession will necessarily turn down legal aid work. He was saying that if the profession is going to be underpaid, especially among the young people who do a lot of legal aid work both at the Bar and in the sister side of the profession, the profession will not attract the best brains and the best ability in the future. The good ones will be snapped up, and we all know it, by large City firms paying very high salaries indeed. But for the legal aid work the less able people will possibly be attracted as they can do that work because they have the time to do it and because they do not have the other work to do.
I repeat that the old days of idealism are over. I know that the noble and learned Lord, Lord Hailsham of Saint Marylebone, practised in those days of idealism, as did the noble and learned Lord, Lord Denning. I say with humility that I did the same in regard to my own profession. Those days ended when the state obligation was enshrined in a statute and there was a cry from the Government that they no longer needed charity at the Bar or in the solicitors' profession and that they were going to pay so that those who needed justice could have it regardless of means.
§ 6.45 p.m.
§ Lord Hailsham of Saint Marylebone
I said to the Committee, and it is true, that from 1945 onwards until I took up relatively high office I too was working under the legal aid system and I took both kinds of work.
§ Lord Mishcon
I accept that at once. Unless there is any misunderstanding let me make it perfectly clear that I was not saying that idealism had died in the profession. Of course it has not and of course there are many volunteers at legal aid centres, advice centres, law centres and other such places. However, if we are tackling the real problem I make the point that either one is saying that legal aid is a charity and people who take it on are doing so charitably or one pays a fair remuneration for the work, which is what this amendment is trying to establish.
§ Lord Elwyn-Jones
I am very glad that my noble friend added those words because the impression that the legal profession is now totally dominated by selfishness and fee earning and has lost its capacity for idealism is a complete misconception in my experience of it. I have found in the running of law centres, for instance, and of legal advice centres the immense willingness of young people to do a great deal of the work for nothing and when they undertake it as full-time work to accept the most modest of remuneration.
It has been one of the most moving things to see how the young rally, and not only in the profession of the law. There is still a great strength in this country of willingness to serve in various ways. In my experience of the legal profession that certainly applies. Let us not be too romantic about those old days when the noble and learned Lord the Lord Chancellor and I used to do cases for nothing. The 133 noble and learned Lord the Lord Chancellor did not go as far as South Wales, to the coal mining areas to do it.
§ Lord Elwyn-Jones
Oh, very good, I did not realise that. I thought that the noble and learned Lord the Lord Chancellor, like myself, would have a more intimate experience of these matters. But let us not be romantic about it. That was not a way to conduct the serious job of instructing someone to do a case. One suddenly had a brief thrown at one at the last moment. A great deal of the work consisted of dock briefs. I heard the noble and learned Lord, Lord Denning, being most romantic about dock briefs. They were a ridiculous method of helping a client who should have been given an opportunity properly to instruct counsel. Brilliant as the young Mr. Denning must have been, proper instructions to counsel were something which did not exist. The law is not a game which is expensively played by lawyers for their own delectation and benefit. I do not regret the passing of those days.
The provision of legal aid is a crucial social and public service. That should not be overlooked. The community has gone into the business of increasing the scope of the law in the life of the citizen, for better or worse— in many ways for better. The machinery of the welfare state and the tribunals that have arisen have made necessary and called for the provision and participation of lawyers. Therefore, the answer is not to approach the problem as a generous piece of giving away of public money unnecessarily. It is a public service. It is an important social revolution, which was achieved following the recommendations of all parties at the end of the war. It was taken up by the government in which I had the honour to be in the humblest of positions as a Parliamentary Private Secretary to the Attorney-General—the lowest of all positions in government. It was a matter of pride to me that at that time, along with Hartley Shawcross and others, we brought the legal aid process into being. I will not have it decried and dismissed as some strange, expensive and extravagant eccentricity which exists merely to line the pockets of lawyers. It is an important public service.
Whether I shall go into the precise detail of all that is contained in Amendment No. 40 is a matter which I should like to ponder. However, we shall be guilty of a dangerous lack of realism if we do not bear in mind that we are dealing with an important public service—the provision of legal assistance for those who cannot afford it. The result has been that a great mass of injustice has been reduced and removed by the existence of legal aid, both in the civil field and in the criminal field. I do not think that any lawyer need apologise for the existence of legal aid services or the fees that are properly paid for it.
§ The Lord Chancellor
We have had a very extensive debate on the amendment. As the Committee will know, there are more amendments to follow which deal to some extent with the same matter. I should like to summarise the position as I see it. I do not 134 expect to be able to encompass all the comments that have been made. However, I shall concentrate on the central issues as I see them.
First, I should like to say that I am personally as committed as anyone here to the independent legal profession. I came into government, as many Members of the Committee will know, from having held the position of elected head of the Bar in Scotland. Those who are familiar with that part of the country will know just how independent the Bar in Scotland is.
Secondly, I should certainly not wish to have any responsibility for a decline in the standard of service that may be provided under the legal aid statutory provisions. I believe that it is among the fastest growing of the social services in real terms. It is an important part of government expenditure on those social services and therefore government's responsibility in the matter must be clearly seen.
My noble and learned friend Lord Ackner introduced the amendment with his usual clarity. On this occasion I had no difficutly whatever in following him, as he had drafted the amendment himself. I am also glad to say that I do not intend to attribute to him in moving the amendment anything in the nature of a superannuated shop steward. Whatever residues of shop stewardship may still be with him, he is far from being superannuated.
Turning to the substance of the amendment, it is important that we understand exactly what is proposed. It is proposed that the particular form of regulations to deal with all forms of civil legal aid should, for as long as this Act lasts, be in that particular form. That is the purpose of putting the amendment into the statute. The regulation-making power would enable the Lord Chancellor to make regulations such as those if he felt that they were the correct regulations in the circumstances. The amendment forces the Lord Chancellor, for all the time that the Act remains on the statute book, to adopt that particular form.
Is that a wise thing to do? Let us take the situation in matrimonial costs. My noble and learned friend Lord Ackner informed the Committee about developments in that connection. There have been developments in terms of matrimonial costs and it has now been possible, thanks to the co-operation of the profession, to agree in a fair degree of detail, and certainly in principle, on regulations which regulate matrimonial costs. At the present time, I believe that those regulations proceed on the basis of prescribed rates rather than on the basis of standard fees. In any case, that is a step towards a new method of dealing with that particular branch of civil legal aid.
The vast proportion of civil legal aid is expended currently on matrimonial causes and personal injury actions. There are others, such as a number of legally-aided passing off cases and the like; they are insignificantly small and special provisions could be made for them. The vast bulk of cases are in those two broad categories. I see the possibility of having a system which will enable us to simplify the preparation of accounts in cases of that kind.
One of the consequences of the present system, as my noble and learned friend Lord Hailsham has said, 135 is that there is a great deal of delay in payment of legal aid fees for civil work. We have tried to mitigate that by a scheme which, as my noble and learned friend has said, he initiated with his usual vigour in defence of the profession. That was and is at least partly a consequence of the fact that a system of fixing remuneration on the lines of the amendment was in use. Anyone who reads the amendment will immediately see that it is intended to deal with remuneration after the work has been done. That is in line with a principle which is dear to the profession, so far as one can judge from the number of times it is reiterated. The principle is one of allowing fair remuneration for the work actually and reasonably done. The work has to be done before remuneration is arrived at.
It will be a great step forward if we can arrange a system in which the basis of remuneration, the rates of remuneration and (if we go to standard fees) the remuneration for substantial pieces of work can be determined in advance. It will make it a lot easier to pay earlier. In my submission, it will make it a lot easier in a number of respects.
A most important matter in this connection is that by the method here proposed the regulations will have to be laid as regulations before Parliament. For civil legal aid that is not the case at present so far as rates are concerned. If rates are fixed by regulation they will be rates that are put before Parliament and Parliament will have every opportunity to consider them before they become the binding rates for the profession. The flexibility of the Bill as at present constituted may well turn out to be of considerable value to both branches of the profession.
I am dealing at present with the form of the amendment. There are other matters—the principles to be applied—which the noble and learned Lord, Lord Ackner, wishes to have dealt with later. For simplicity, in order to focus on the points at issue in the amendment, I propose to leave that over. I may have something to say about it, as Members of the Committee will imagine.
My objection to the amendment is that for the length of time that the Bill lasts it forces the remuneration to be fixed in accordance with these methods. I quite understand that this method, subject to a minor change or two that my noble and learned friend has introduced into the drafting, is the provision that has operated in the past in civil legal aid generally. However, as has been said more than once, the mere fact that it has operated in the past does not necessarily mean that it is incapable of improvement. To introduce flexibility enabling us, for example, to fix standard rates for standard work approved by Parliament is surely an advance. It means that Parliament will see rates when they are fixed, the rates will then be entirely public and of course any sensible regulations will have some flexibility. The particular rate may not apply to every possible type of case; there may require to be exceptions.
Much has been said with which I agree about the need to maintain standards. I am slightly concerned 136 about the question of complete competition. I do not think that it is likely that the public service of legal aid could pay figures that will command the top of the profession all the time. That is probably more than my noble and learned friend and Members of the Committee who supported the amendment will have in mind. I feel sure that those who are at the top of the profession and therefore generally able to command very high rates will think it their duty to take legal aid work from time to time. At least I hope that would be the tradition.
It would be wrong for me to sit down without saying one word about what was said by some noble Lords with regard to the present idealism in the profession. I entirely accept that the profession is entitled to be remunerated for work done under the legal aid scheme. The regulations in the Bill will certainly so provide. I think that it would be right for me to say that I appreciate fully the work done, for example, by the Free Representation Unit that the Bar has set up. It gives excellent service and supports what the noble and learned Lord, Lord Elwyn-Jones, said: idealism—the desire to help people—is still very much alive at the Bar. I intend in the legal aid scheme to depend not on those good qualities but on the good quality of service in return for proper remuneration.
§ Lord Ackner
Anyone who had joined the debate knowing nothing of the background and hearing references to unconstitutional suggestions and fixing the situation in a mould that was unsatisfactory would never have dreamed for one moment that the amendment being proposed was merely to put back that which has existed mutatis nultandis since 1974. I do not follow—I am delighted that my noble and learned friend the Lord Chancellor has not sought to support it—the proposition that for the last 13 years there has been an unconstitutional provision operating in the Act of 1974. I think that the in terrorem speeches about unconstitutionality will have to be regrouped when one comes to debate Clause 32, which I was anxious to keep in its own compartment.
My noble and learned friend the Lord Chancellor has given us no indication about whether the taxation appeal system will apply; in other words, whether the judicial process ultimately of fixing fees will give way to the administrative process which certainly the scrutiny team wished to have in mind. I hope that there will be an opportunity later in the debate for him to deal with it. I hope too from his silence that the Government remain committed to the response that I read out, which was that those of small and moderate means should have the same chance to pursue or defend legal rights as those in a position to instruct lawyers privately.
What I think is being overlooked and can be developed later is this. We do not have a system in which the majority of work is private and here and there the practitioner does legally assisted work. Fifty per cent. of the practising Bar—I know not the position with solicitors—does crime, and crime is publicly funded work, so members of the Bar are totally . dependent upon legal aid fees or their equivalent. I am told that 70 per cent. of all 137 matrimonial work is legal aid on both sides. Therefore, we do not have the situation that applied in the time of the noble and learned Lord, Lord Denning, and later and in the time of my noble and learned friend Lord Hailsham where occasionally and quite rightly one did assisted work as a matter of obligation to the profession. Here there is a high proportion of people totally dependent upon legally aided work. If they cannot afford to do that work, as has already been pointed out—I shall point it out again when we consider Amendment No. 48—this will have a serious effect on recruitment and in due course on the entire administration of justice. I leave that over for one moment.
Perhaps I may make this observation about the romanticism of the dock brief to which reference has been made. I was a very young man when the dock brief system was operating after the war; I had only just been called. I was delighted to get dock briefs because one had to break the vicious circle of getting work to be known and being known by getting work. When the word went round that there was going to be a docker, those of greater seniority than I was could be seen getting out of court like greased lightning because they could not afford to be landed with the obligation of the dock brief, which for all they knew might be a fight in those days for even two or three days. These rose-coloured spectacles are perhaps too deeply tinted among those of my very senior noble and learned friends.
I listened to the short observations made by my noble and learned friend the Lord Chancellor. The amendment was designed to draw him out. He has not been drawn very far but then that is not his main characteristic. I shall ponder upon his observations. I shall consider them in the light of what will be the main debate upon this matter in Clause 32, which comes to grips much more firmly with the basic philosophy of the legislation and its consequences. At this moment in time I do not press the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 18 agreed to.
§ Clause 19 [Competent authorities to grant representation under this Part]:
Lord Elwyn-Jones moved Amendment No. 41:
Page 16, line 11, leave out subsection (9).
The noble and learned Lord said: This amendment leaves out subsection (9) of Clause 19, which provides that
An order under section 2(4)"—
that is the provision giving wide powers to make orders—
may make provision restricting or excluding the competence of any court mentioned in any subsections (2) to (7) above and may contain such transitional provisions as appear to the Lord Chancellor necessary or expedient".
Subsections (2) to (7) are a vital part of the arrangements for the provision of criminal legal aid. They are of crucial importance in the running of the courts where criminal aid is called for.
§ The proposal in the clause in effect will subvert and do away with the present arrangements with regard to the grant of legal aid for representation in criminal 138 cases. At the present time a decision whether or not legal aid should be granted in criminal cases is for the courts to make and is controlled by the courts. No doubt the public interest in seeing that justice is fairly and properly applied, and that there is a proper legal representation where it is necessary, is a crucial part of the fairness of our criminal justice system.
§ We submit from this side of the Chamber that Clauses 18 and 19 substantially affect and limit the power of control by the courts. In our view that control should be maintained in the courts for three broad reasons. First, the court is always in the best position to judge whether representation is necessary. It has the experience and the detail of the case. It sees the applicant and it is interested in the proper and fair administration of justice. Secondly, control by the courts and by the judges assists the courts to control and regulate their own proceedings. Thirdly, control by the courts enables applications to be dealt with expeditiously and thereby prevents unnecessary and undesirable delay in the criminal process.
§ I notice that the noble Lord, Lord Meston, is a co-signatory to the amendment that was initially in the name of my noble friend Lord Mishcon. We on this side of the Chamber are opposed to the power being given to the noble and learned Lord the Lord Chancellor, generously as he would do his best to interpret it, to remove that control from the courts by order made under Clause 2(4). I cannot recollect at the moment whether affirmative resolution was necessary with regard to Clause 2(4). I think that it was.
§ 7.15 p.m.
§ The Lord Chancellor
Perhaps it may help to say that I undertook to make such provision in that clause.
§ Lord Elwyn-Jones
I am grateful. That was lying at the back of what I am pleased to call my mind. I am glad that my recollection is correct. That modifies the mischief in that the power can be examined again before it is granted by the House and another place to the noble and learned Lord. However, for the reasons that I have given, Clause 19(9) should be deleted from the Bill in the interests of the fair administration of justice in this land.
§ Lord Meston
Very briefly I support the amendment in the interests of retaining control by the courts for each of the three broad reasons advanced by the noble and learned Lord, Lord Elwyn-Jones. Like him, I am somewhat comforted to know that there will now be an affirmative resolution procedure in these matters.
§ The Lord Chancellor
As Members of the Committee know, the purpose of setting up the Legal Aid Board is first to take over the functions at present with the Law Society in relation to legal aid. That is clearly the first step. However, there is a lot to be said for legal aid being administered by one authority. At the moment legal aid in criminal cases is administered in effect by the courts. If my memory is correct, on a past occasion I have heard the noble and learned Lord, Lord Elwyn-Jones, mention the discrepancies 139 that occurred between one court and another in the grant of legal aid. To some extent that has been mitigated as the result of arrangements that have been made, but there may still be a certain amount of difference between one court and another in this field.
When the Legal Aid Board is set up the Government wish this aspect to be considered by it. If there is no objection to it taking over this function of legal aid in criminal cases I would be empowered under the provisions of Clause 4 to give it that function. I have undertaken that this exercise of power will require affirmative resolution of both Houses of Parliament. Noble Lords would therefore know of the position and would hear my justification for such resolution in the light of the circumstances as they then obtained.
It is a comment on the system we have adopted that everything is not being done at once. There is something to be said for doing this in stages, for examining the situation as we proceed; and accordingly, while nothing is intended to happen immediately, the subsection is a very important part of the Bill and should remain there. Therefore I oppose the amendment.
§ Lord Elwyn-Jones
Much will turn on the outcome of the control which the noble and learned Lord the Lord Chancellor will impose in the exercise of those powers. That is something we shall have to see when the intentions of the noble and learned Lord are announced and when he seeks the leave of noble Lords and of another place for what is done. The better course at this stage is to reserve judgment on the matter and return to the issue again on a future occasion. In those circumstances, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Clause 19 agreed to.
§ Clause 20 [Availability of representation under this Part]:
Lord Elwyn-Jones moved Amendment No. 42:
Page 16, line 23, at end insert—
("The factors to be taken into account by the competent authority in determining whether it is in the interests of justice that representation be granted in any case shall include the following—
§ The noble and learned Lord said: Those of us who are presently in the Chamber will not be immediately familiar with the Widgery criteria. It may be helpful if I were to explain that Lord Widgery set out what he considered and advised were the factors that 140 should be taken into account by the competent authority in determining whether, in the interests of justice, representation should be granted in any case where an application for representation is made. Those criteria have been included as the basis of the approach of the criminal courts to the granting of legal aid ever since the Widgery criteria were introduced.
§ It is significant that for some reason for Scotland the inclusion of the Widgery criteria in the Legal Aid (Scotland) Act 1986 was considered necessary and desirable. However, the Government have not thought that necessary for England and Wales. I do not know why we should be so unhappily treated, bearing in mind the more openhanded approach to our Scottish brethren. What is activating the Government's mind in leaving out the Widgery criteria as guidance to the courts in deciding whether or not to grant legal aid?
When one looks to see what the criteria are, I have little doubt that those of us still in the Committee will think that they are very reasonable factors. They are all set out in the amendment. I do not know that I need read them all, but perhaps I may briefly refer to them:
The factors to be taken into account by the competent authority in determining whether it is in the interests of justice"—
that is a crucial phrase—
that representation be granted in any case shall include the following".
There then follow five significant tests that ought to be applied. The first is,
that the charge is a grave one in the sense that the accused is in real jeopardy of losing his liberty or livelihood or suffering serious damage to his reputation";
that the charge raises a substantial question of law";
that the accused is unable to follow the proceedings and state his own case because of his inadequate knowledge of English"—
that is true of parts of the Principality—
mental illness or other mental or physical disability".
Then we find,
that the nature of the defence involves the tracing and interviewing of witnesses or expert cross-examination of a witness for the prosecution";
that legal representation is desirable in the interest of someone other than the accused as. for example, in the case of sexual offences against young children when it is undesirable that the accused should cross-examine the witness in person".
§ The Committee may think that that guidance to the court exercising this important responsibility would be welcomed by the court. The noble and learned Lord may say that the court will apply those kinds of factors in any event, but if it is to be a duty for the competent authority in determining whether representation shall be granted the Act of Parliament itself should set out those factors that ought to be considered if an application for representation is made. The critical words, as my noble friend Lord Mishcon reminds me, is that the factors shall include those as a minimal test of what should be considered as the law. If there are other factors for the court to 141 consider, that would properly be in the power of the court, if this became part of English and Welsh law.
§ Accordingly, I hope that the noble and learned Lord the Lord Chancellor, coming from where he does, may think that, not for the first time, the wisdom north of the border in the field of the administration of justice is one that we should be well advised to follow and apply also statutorily the consideration of the Widgery criteria here. I beg to move.
§ Lord Meston
In supporting the amendment, I suggest that the Widgery criteria enshrine important factors. I know that the Bar considers that the Widgery criteria should be expressly preserved in this way. The exclusion of the criteria would give the competent authority under the Bill an unfettered discretion, particularly so if Clause 19(9) stands, as has been agreed under the previous amendment.
§ The Lord Chancellor
The situation so far as concerns England and Wales and so far as the statutory provisions apply is that the phrase here has been "in the interests of justice". It is from that phrase that Lord Widgery developed these factors. In other words, the authority was that phrase. We are really duplicating the issue, when one examines the matter thoroughly, by putting in "in the interests of justice" and these factors as well. As I have said, the factors in the amendment are simply an explanation of factors which would be taken into account according to the criteria.
The noble and learned Lord, Lord Elwyn-Jones, pointed out that these words are incorporated in the Scottish Act passed last year. Obviously that fact weighs with me somewhat. In this case the court remains in charge, at least for a time, and the case for enshrining the criteria in statute here for the first time has not been made out. It is not a point about which I feel very strongly. Personally I do not think it would be important one way or another. If the profession feels very strongly about it for good reason, obviously I should be happy to consider that. The noble Lord, Lord Mishcon, indicates that it does. That may be so; on some other occasion I should like to discuss the matter a little further. The noble and learned Lord was kind in his introduction of the amendment and the noble Lord, Lord Meston, supported it. However, I have not heard of any difference that would be made if it were left out. As far as I can see, it would make no difference and it is for that reason that, at the moment, I am not persuaded that it is necessary to lengthen the statute book by this particular addition. As my remarks indicate, I feel open about the matter but I should prefer to consider it further.
§ Lord Elwyn-Jones
As the noble and learned Lord has undertaken to consider the matter further I shall not press the amendment. However, I assure him that this is taken seriously by the Bar and the solicitors' profession. I hope that in his reconsideration he will give due weight to the fact that both aspects of the legal profession in England and Wales attach importance to maintaining the Widgery criteria as part of the criminal law They also take the view that 142 the noble and learned Lord's good friends north of the Border will not introduce sheer irrelevance and sheer verbiage into one of their Acts of Parliament. I cannot think that he would dismiss them as recklessly as that. In view of what has been said by the noble and learned Lord, I ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 7.30 p.m.
Lord Mishcon moved Amendment No. 43:
Page 17, line 26, leave out ("may") and insert ("shall").
The noble Lord said: I can deal with this amendment shortly. I stand to be corrected, but I believe that in discussion on another statute it was made abundantly clear that where legal aid was refused in a criminal case by the magistrates' court there would be an appeal procedure. The wording of Clause 20(10) of the Bill as it stands reads:
Regulations may provide for an appeal to lie to a specified court or body against any refusal by a magistrates' court to grant representation under this Part".
All we ask is that that should he mandatory and that the regulations must provide for this right of appeal. It is a vital issue to any defendant. I beg to move.
§ Lord Meston
To say that there may be an appeal procedure is thoroughly uninformative and unsatisfactory. I support the amendment.
§ The Lord Chancellor
As I mentioned a while ago, there was a complaint about the divergence between courts in relation to the granting of legal aid. The 1982 Legal Aid Act provided for the establishment of criminal legal aid committees of the Law Society whose purpose is to hear such appeals in certain circumstances. Those committees will transfer to the board once it takes over. However, an appeal does not lie in all circumstances. An appeal from a magistrates' court's refusal to grant legal aid could be made if the applicant had been charged with an indictable or either-way offence and if the application had been refused on interests of justice grounds. There is also a restriction on the timing of applications which effectively means that if an application for legal aid is made too close to the date fixed for the trial there can be no appeal. Obviously, that would be an easy way of postponing the trial.
There is no right of appeal where the applicant is refused legal aid on the ground of means. It is my intention that those arrangements should continue but I do not intend to extend the right of appeal. Those arrangements appear to work quite well and I see no reason to extend them further.
As I understand it, the amendment would require there to be a right of appeal in all cases, and for that reason it is unacceptable. The noble Lord shakes his head and no doubt he will explain to me why he does so. However, that is the explanation for the use of the word "may". Obviously, one could write out all of these conditions but I hope that it will be best left to regulations. Apart from anything else, it will give us the opportunity to consider the system as it goes along. No system is absolutely perfect and it may be necessary to alter the situation as the years go by.
§ Lord Mishcon
The noble and learned Lord will realise that as the Bill now stands there need not be any regulations for an appeal to lie in any case at all. Therefore, with great respect, what he has said does not apply. If there are regulations which shall be made, they will permit an appeal and lay down the procedure, and there could be an exception to the rule in the kind of case about which the noble and learned Lord speaks. However, at the moment there is no obligation to have any regulations at all providing for an appeal.
If, on consideration, the noble and learned Lord wanted to add to this provision words to the effect that the regulations which make provision for an appeal can be subject to certain conditions or exceptions and that they will then come before Parliament in the normal way, I should obviously bend my head in approval and say that I can understand the point. However, I repeat—and I hope not ad nauseam—the fact that, as the Bill stands, no regulations for an appeal need be made at all. Taking that point on board, possibly the noble and learned Lord would care to say that it may be that at Report stage he would like to add the provision that there need not be an appeal in every case but that he would at least wish to see that the regulations must be made.
§ The Lord Chancellor
I am saying that we intend the present system, as enshrined in the Legal Aid Act 1982, to continue, and regulations will be made so to provide. The Bill does not lay an obligation on us to do that but it provides us with the power to do that. I am telling the noble Lord that I intend that that power should be exercised in that way. I think that the result will be a happy one.
§ Lord Mishcon
As do all Members of the Committee, I wish the noble and learned Lord an extremely long tenure in his office and an extremely long and healthy life. However, the fact that at this moment he says that he intends to make certain regulations is surely not a way of dealing with legislation when we all know that the regulations ought to be made. If the noble and learned Lord wishes me to withdraw the amendment, I appeal to him to say that he will at least consider adding words which make it mandatory—he cannot lose anything if he intends to do so—that such regulations will be made to provide for an appeal, even though not applying to every case. If the noble and learned Lord says that he will consider that point, I shall take a certain course.
§ The Lord Chancellor
I am certainly happy to consider something along those lines. I am not absolutely certain whether it will add anything to the Bill but I am willing to consider the noble Lord's proposal.
§ Lord Mishcon
If nothing is added and nothing is subtracted, presumably no harm is done. In view of what the noble and learned Lord has said, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.144
§ The Earl of Arran
I believe that this would be a convenient moment at which to break for dinner. Perhaps I may suggest that we return to the Committee stage of the Bill not before 8.40 p.m. I beg to move that the House do now resume.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.