§ 3.39 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 35 [Restriction of disclosure of information]:
The Lord Chancellor moved Amendment No. 57CA:
Page 28, line 42, after ("Board") insert ("or any court or other person or body of persons").
§ The noble and learned Lord said: With the leave of the Committee I shall speak at the same time to Amendment No. 57DA. These amendments seek to restore fully the position under Section 22 of the 1974 Act. The provisions deal, as is the case at present in the Bill, with the board but other arrangements continue. There has been concern that the Government wish to lessen the restrictions on the confidentiality of legal aid applications, a subject related to one which Members of the Committee were discussing a little earlier. This is certainly not so.
§ In fact the amendment goes further than to restore the position in Section 22 of the 1974 Act which covered only civil legal aid applications. The Bill will now cover criminal legal aid applications handled by the courts as well as any other matters with which the board deals.
§ The same point is dealt with in the amendments down in the name of the noble Lord, Lord Irvine of Lairg. I believe that our amendments which take account of his amendments cover all that his amendments would cover and possibly go just a little further. I hope that Amendment No. 57CA will be acceptable to the Committee.
§ Lord Mishcon
I am very glad that the noble Lord, Lord Irvine of Lairg, and I put down Amendments Nos. 57D and 57E. The noble and learned Lord has been gracious enough to put down a government amendment. It was necessary because there were cases where the disclosure of information to DHSS officials was going into quarters where it was never meant to go. There was the case of Whipman v. Whipman in 1951 where the quoted words of the Legal Aid Act 1974, to which the noble and learned Lord referred, were held to include officers of the National Assistance Board, which was the forerunner of the DHSS.
My only reason for rising, apart from thanking the noble and learned Lord for putting right this matter to which we called attention, is to say—and I am sure he will not regard this as an impertinence—that in this amendment he is not quoting the words of the 1974 Act as we were content to do. Section 22 of the 1974 Act said, and at that time the Law Society was doing what the board will do:or to any committee or person on their behalf".338 Therefore the confidentiality was reserved for those who were acting on behalf of the Law Society as indeed the DHSS was at that time.
I well understand why in any amendment, because those words were omitted from the Act, one should try to cover precisely the same bodies. I well understand why one wants to cover criminal legal aid as well as civil legal aid by having the words "any court". But the words the noble and learned Lord uses in his amendment are,any court or other person or body of persons".The words "on their behalf" are omitted. As therefore the cloak of confidentiality will now descend upon a communication by anybody to any person or body of persons provided that it is in regard to the matters contained in the Bill, I should have thought that the noble and learned Lord is in fact putting down a curtain beyond what he might intend to do.
I said that I venture this submission with the greatest respect and it is not meant to be anything other than helpful. If the noble and learned Lord will kindly look at the wording of the Act as it will be when it is amended, he will see that it will read:Subject to the following provisions of this Section"—there are exceptions to this rule which are contained in the clause—no information furnished to the Board or any court or other person or body of persons for the purposes of this Act in connection with the case of a person seeking or receiving advice".I am very content, if the noble and learned Lord is, that this is meant to cover people in Citizens' Advice Bureaux and people who give information to officials at the town hall, saying, "I want to consult somebody in connection with my rights under the Act", and thereupon telling an official at the townhall something about his case or what he wants to do. If the noble and learned Lord is content with the extent of that umbrella I certainly do not raise any question. I thought it my duty to call to the attention of the noble and learned Lord, if he will permit me to do so, the wording of the 1974 Act and the limiting words that we put in our amendment which are far more limiting than his own.
§ 3.45 p.m.
§ The Lord Chancellor
I am grateful to the noble Lord for the spirit in which he has welcomed the amendments and also for the constructive questions that he has asked about the wording. He raises a doubt about whether the cloak of confidentiality has not been drawn too far to cover information. I looked at this point myself in relation to the amendment and the other amendment of the same kind to which we shall come shortly. In the light of the exceptions in paragraphs (a) to (f), it seemed to me that we had got it right. However, this is an important question and if the noble Lord will allow me I shall certainly consider further what he has said. It may be that he will want to enlighten me even further and in more detail about the particular risks that he has in mind. I am sure that we could conveniently do that without taking up the time of the Committee.
I am anxious that we should get this right and have it not too far from and not too short of the goal. If 339 we miss the goal by going too far I would be happy to bring it back. At the moment I think it is right, when one has regard to the various exceptions which I think would cover all the proper situations in which disclosure might take place. If the noble Lord has particular problems in mind perhaps I may have the opportunity to discuss the matter with him.
§ Lord Mishcon
The noble and learned Lord has spoken with his usual courtesy, and I shall be delighted to have the kind of conversation or correspondence that he has in mind. I mentioned as an example the communication that might be made to a journalist for the purposes of any claim or matter under the Bill and as to whether again the curtain of confidentiality is meant to fall on that communication—a matter which is in no way dealt with in the exceptions contained in the clause. As he rightly says, this is more a matter for friendly discussions as there is no difference between us except that we want to know what we are providing for. I gladly accept what the noble and learned Lord has said.
§ The Lord Chancellor
The journalist case may be of some importance. I want to draw attention to the possibility of general information being handed out by the board under subsection (2). The idea is that information about activities and so on can be furnished in such a way as not to identify the circumstances of a particular case. That is put in with a view to trying to help to ensure that the public investigation and interest in these matters can be furthered without damage to individual confidentiality.
§ On Question, amendment agreed to.
§ [Amendment No. 57D not moved.]
The Lord Chancellor moved Amendment No. 57DA:
Page 29, line 18, after ("Board") insert ("or any court or other person or body of persons").
§ The noble and learned Lord said: I spoke to this amendment a moment ago. I beg to move.
§ On Question, amendment agreed to.
§ [Amendment No. 57E not moved.]
§ Clause 35, as amended, agreed to.
§ Clause 36 [Proceedings for misrepresentation etc.]:
The Lord Chancellor moved Amendment No. 58:
Page 29, line 34, leave out ("four") and insert ("three").
§ The noble and learned Lord said: Clause 36 sets out the proceedings and penalties where those seeking or receiving legal aid fail to furnish or falsely furnish the information required of them under this Bill. Subsection (1) lays down the penalty for this offence as being a fine not exceeding level 4 on the standard scale, currently a maximum of £1,000 and/or a term of imprisonment not exceeding four months. This was the penalty under the 1974 Legal Aid Act, but I am informed that it is out of line with the maxima which are normally adoped now. The more usual formulation nowadays is for a level 4 fine to be accompanied by a maximum period of three 340 months' imprisonment. I am sure your Lordships will think it right that this normal rule should be adopted in this case and this amendment will bring the Bill into line with the standard practice. I beg to move.
§ Lord Elwyn-Jones
I respectfully agree that this is a useful and beneficial amendment of which we on this side of the Committee approve.
§ Lord Renton
I, too, agree but I wonder whether I may briefly mention in passing that one of the offences to which this level of penalties will relate is described in paragraph (a) of subsection (1) as:intentionally fails to comply with regulations as to the information to be furnished by him".We know that there will be a great mass of regulations under the Bill. It may be quite an alarming task for the ordinary lay person to have to decipher the regulations and make quite sure that he has not failed to comply with them, whether intentionally or otherwise, unless they are phrased in such a way that he could not possibly go wrong or unless a suitable explanatory note is attached to them.
Of course, we will not have the chance to amend these regulations to ensure that situation in either House. Therefore I ask in passing that my noble and learned friend—who will, I know, pay particularly careful regard to the contents of all the regulations—makes sure that these particular regulations are such as the ordinary person can understand.
§ Lord Campbell of Alloway
May I support everything that my noble friend Lord Renton says? I ask respectfully that my noble and learned friend the Lord Chancellor perhaps considers a departure from practice in this way. As a rule, the regulations say at the start of the explanatory note, "These regulations are made pursuant to Section this, that or the other of the Act". It would be very helpful in this case if reference could be made in the explanatory note to the penalties for breach of the regulations as provided in subsection so-and-so.
§ Lord Elwyn-Jones
However complex the regulations may be—and the Committee will by now by over-weary with what I have said by way of complaint about the mass of regulations-this amendment will be beneficial on any view of the regulations to the person concerned. Therefore for that reason I approve.
§ The Lord Chancellor
Although it does not arise out of the terms of this particular amendment, since my noble friends have raised the question I should say, first, that of course we shall do our best to make the regulations as explicit as possible. Where information is required from applicants, that is done by means of forms that they have to fill up, and again we shall endeavour to have those forms absolutely plain so that the questions they have to answer are clear to them. It is normal in such forms to draw attention to the possibility that the giving of false information may have criminal consequences. One does not want to frighten people unduly, but, on the other hand, it is right that they should be informed.
341 But the real protection for anyone who makes an error is the word "intentionally' which is used here. The idea of that is to prevent people being convicted of a criminal offence under this provision if it was not done intentionally. If it was done because they had misunderstood or something of that kind, it would not he an offence. I renew my Motion.
§ On Question, amendment agreed to.
§ Clause 36, as amended, agreed to.
§ Clauses 37 and 38 agreed to.
§ Clause 39: [Finance]:
Lord Elwyn-Jones moved Amendment No. 58A:
Page 31, line 6, leave out ("with the approval of the Treasury").
§ The noble and learned Lord said: On Tuesday night until a very late hour we heard the well repeated statement of the fact that, to a great excess, the baleful eye of the Treasury was upon every movement of the Lord Chancellor in regard to the application of legal aid. The real matter that is raised by the question is: why in the circumstances that are contained on page 31, line 6, and page 31, line 8, is an express reference to the approval of the Treasury being required?
§ The provisions of Clause 5 of the Bill deal with the major expenditures to be incurred and to be paid by the board, and paragraph (b) of Clause 39(1) provides for such further sums as the Lord Chancellor may from time to time think it necessary, or the board itself may think it necessary, to expend to carry out the purposes of the legal aid scheme.
Then one comes to subsection (2) which reads:
The Lord Chancellor may, with the approval of the Treasury
It seems to me an unusually detailed exposition of the requirement of Treasury approval, going beyond the range of previous experience of the involvement of the Treasury in the relevant legislation. Perhaps the noble and learned Lord will explain why it is necessary in such wide terms to involve the Treasury in almost every penny that he spends. I beg to move.
§ Lord Simon of Glaisdale
I support both of these amendments, because I think that the noble and learned Lord has spoken to both Amendment No. 58A and Amendment No. 58B. But the words,with the approval of the Treasuryare unnecessary and, if unnecessary, their appearance in the Bill is positively undesirable. As for the necessity, my noble and learned friend Lord Elwyn-Jones has analysed this clause.
By subsection (1)(a) the Lord Chancellor may pay to the board out of monies provided by Parliament, as I understand it—and my noble and learned friend the Lord Chancellor will correct me if I am wrong—such sums as are required for advice, assistance and representation; and under paragraph (b) such sums as he may determine are required for 342 other expenditure. I take it that that refers to matters like staff and accommodation.
It seems to me that the approval of the Treasury is certainly required for both those kinds of expenditure. Under paragraph (a) there will be large sums paid out of the monies provided by Parliament. Although the Treasury is not—if I recollect correctly—responsible for the actual handling of the funds in the Consolidated Fund, in the sense that it does not manage those funds, it has a general responsibility and therefore it is right that the Lord Chancellor should have the Treasury's approval. If I am right in thinking that paragraph (b) deals with accommodation and such things, that again is a matter which intimately concerns the Treasury and is a daily matter of routine. Therefore it is right that the Treasury's approval should be required.
I do not know what is intended by subsection (2)(b). When my noble and learned friend the Lord Chancellor replies perhaps he will say what conditions he has in mind. My question to him is: if those words arc not in the Act when it is passed, will he not as a matter of routine and the ordinary machinery of government arrange for his officials to clear the payments with the Treasury? My recollection of spending departments and the Treasury is that that would be done as a matter of routine. It is not required on the face of the Act.
When we discussed a similar matter on Clause 32(11), I think it was, my noble and learned friend said that these words are common form. So they are, and so much the worse for all of us who have to use the statute book. Why litter the statute book with unnecessary phrases if my noble and learned friend's department would clear such payments with the Treasury as a matter of routine and the ordinary machinery of government?
I said that those words are not only unnecessary; they are positively undesirable. During the Bill's passage so far, the Treasury has come under constant fire. On Second Reading one of my noble and learned friends, who is noted for his moderation of language, said that the Bill was peppered with instances of the hand of the Treasury on the Lord Chancellor. In Committee another of my noble and learned friends referred to the Lord Chancellor as being manacled to the Treasury. I do not by any means share those criticisms. But if Treasury officials insist, as they have in the past, on such unnecessary terms being put into the Act, the Treasury has only itself to blame if it becomes subject to vilification, as it has been during the Bill's passage.
For those two reasons—that the words are unnecessary and, if they are unnecessary, they are undesirable because they clutter up the statute book and focus an unfair gaze on the Treasury—I support the amendment.
§ 4 p.m.
§ Lord Campbell of Alloway
Surely the sums referred to in paragraph (b) are sums taken from a grant of public funds granted with the Treasury's approval. That is the source. We have at Parliament the source for the granting of the funds. Is it appropriate that the manner of allocation, 343 as determined by the Lord Chancellor, for the purposes ofthe other expenditure of the Board",should in any event be subject to the Treasury's approval. Surely it is for the Lord Chancellor to determine how he allocates out of public funds the expenditure for those other purposes. Perhaps it is my ignorance but what does the Treasury have to do with that?
§ Lord Renton
On various previous occasions I have supported the noble and learned Lord, Lord Simon of Glaisdale, and he has sometimes supported me, when attempts have been made to exorcise those words from other statutes dealing with different matters. However, we have never had a stronger case than this for getting rid of words which clutter up the statute book, as has been said. We all know something about system of government and the careful and thorough consultations which take place within it, and I find it strange that the Lord Chancellor, one of the great Officers of State, should have specifically written into the statute that he cannot act without the Treasury's approval when he would never dream of doing so even if it were necessary for him to do so.
Sooner or later I hope that wisdom will prevail and we shall no longer have those words inflicted upon us in Bills. If this could be the occasion, many people would rejoice.
I shall add this argument to all those that have already been expressed. I refer to the second amendment tabled by the noble and learned Lord, Lord Elwyn-Jones. In subsection (2)(a) we find that the Lord Chancellor is to:determine the manner in which and the times at which the sums referred in subsection (1)(a) above shall be paid to the Board".Those are matters of comparative administrative detail upon which the Lord Chancellor is the right person to make his own decisions. The money to be approved will already have been advanced either as an Estimate or a Supplementary Estimate, and in any event in the natural course of events, with the Treasury's approval. Why should the Lord Chancellor have to go back to the Treasury yet again for it to decide relatively minor matters as to how and when he is to pay the moneys to the board? That seems utterly absurd.
§ Lord Mishcon
Not only is it utterly absurd but as the noble and learned Lord, Lord Renton, hinted—
§ Lord Mishcon
Nevertheless, there are some of us who regard the noble Lord as learned and I intend to continue to use the adjective, and not only as a matter of courtesy. As the noble Lord, Lord Renton, with his learning, said, there is no doubt that this provision is wrong. It is not that it is otiose and it is not that obviously Treasury approval must be obtained. The point he makes—one which I wish to underline for an additional reason that I shall give in a moment—is 344 that it is absolutely wrong to fetter the Lord Chancellor's Department in regard to the matters mentioned in paragraph (a) with the duty of having to obtain the approval of the Treasury.
As the noble Lord said, the sum which is available is approved by the Treasury. The way in which it is handed out, the period over which it is handed out in instalments, or whatever, must be a matter for the administration of the Lord Chancellor's Department. If I may say so, if these words were suggested by any Treasury official, then, with the greatest respect to that official, that is a bit of impertinence and should be removed.
I believe that it may help in the tidiness of the debate if, instead of making a separate speech on the next Amendment, No. 58C, I speak to that amendment in my name at this stage. The Amendment is to leave out lines 11 to 13. Those lines constitute paragraph (b), which says that the Lord Chancellor, but only with the approval of the Treasury, may,impose conditions on the payment of the sums referred to in subsection (1)(b) above".The paragraph referred to there says:such sums as he may [again] with the approval of the Treasury, determine are requred for the other expenditure of the Board".So that the debate is a comprehensive one and the noble and learned Lord in his courtesy may reply to the various matters at issue in this clause, I should like to say why I put down the amendment. Perhaps I may now turn to the noble and learned Lord, Lord Simon of Glaisdale. I put it down, first, because it is a little uncomfortable for the Committee again to be faced with the possibility of conditions being imposed the nature of which noble Lords are completely unaware at this stage. It would be helpful if the noble and learned Lord would give some indication as to why these words are included so that we may at least know the workings of the mind of the noble and learned Lord the present Lord Chancellor.
One of the reasons I have asked for this paragraph to be excluded is to draw attention, so that the noble and learned Lord can deal with it in his reply, to the parlous state in which the board may be placed if it has not the proper resources of administration. A crisis point was reached last year and a joint statement was issued by the Law Society and the Bar Council in the spring of 1987, before all the implications of the White Paper could possibly have been taken up, because the White Paper came out only a matter of a month or so before this statement.
The statement said:Figures worked out by the legal aid administration show that in l987–88 time taken to deal with applications for civil legal aid and with claims for payment by solicitors and counsel will substantially increase. Whereas previously there have been delays of some weeks there will now be delays of months. The service is already stretched by tight funding. It has been necessary to discontinue the payment of overtime and the employment of temporary staff in legal aid offices: to impose tight controls of the filling of vacancies which occur and even in some offices to decline to deal with incoming telephone calls".That was the position in the spring of 1987 and this was a joint statement made by the Law Society and the Bar Council.
Now comes the additional work which we know will be imposed upon the board by reason of 345 suggestions which have been made in the White Paper and which we have been informed will be taken up. Let me give noble Lords one big example of the new burden on the Legal Aid Board. It was one which came up with approval when we dealt with previous clauses in the Bill in Committee: namely, the right of a person concerned in litigation, where an application has been made by the opposing party for a legal aid certificate, to make representations to the board as to the grant of that legal aid certificate. We thought that was a very important provision in order to stop the sort of bogus case which was referred to in the speech which I remember was made by the noble and learned Lord, Lord Denning.
We thought that was a proper instrument, especially because of the injustice which is so often meted out to somebody who is not an assisted person, faced, as an opponent in the courts, by somebody who is. Noble Lords can well imagine the burden which will fall on the department in dealing with those applications to oppose the grant of legal aid.
It is intended also, following on the White Paper, as I understand it, to impose greater limitations on the scope of legal aid certificates. That, again, will place an additional burden on the administration. I am informed that what the Law Society and the Bar Council really fear is that the legal aid system will fall into disrepute because of delays and inefficiencies caused by a lack of funding.
It is proper to bring this up in the debate. I hope that the noble and learned Lord the Lord Chancellor will in the course of his reply give us some assurance that he is satisfied, having regard to such discussions as have already taken place with the Treasury, that these additional matters can be covered, that there should not be a lack of funding which will lead to delays and the inefficiencies to which I have referred, since there are these additional burdens now being placed on the board as against those which were placed on the Law Society in the past.
§ 4.15 p.m.
§ Lord Donaldson of Kingsbridge
No layman has spoken on this question and I feel I cannot let slip the opportunity of making perfectly plain that though I may not understand everything the noble Lord, Lord Mishcon, has said, I understood the noble and learned Lord, Lord Simon of Glaisdale, very clearly. He said that if the phrase under discussion is unnecessary it is also undesirable. It seems to me that it is perfectly clear that it is unnecessary, because the money is voted by Parliament and the duty of the Treasury is not to deal with the quantities but to deal with the fact that that money is within the Vote. That is its only duty. So it is clearly unnecessary.
As we should never miss an opportunity of excluding reference to the Treasury when it is possible, I support this amendment very strongly, partly also because I should prefer the decision of the Lord Chancellor without the Treasury to the decision of the Lord Chancellor with the Treasury.
§ The Lord Chancellor
I am very grateful for the sentiment which the noble Lord, Lord Donaldson of Kingsbridge, has just expressed, in a sense. But I 346 think that in approaching this matter we must have regard to the constitutional position. As the noble Lord, Lord Allen of Abbeydale, mentioned earlier on, he had the honour of serving in the Treasury, which he described as a great department of state. It is the department which has the responsibility to Parliament for the proper administration of moneys voted by Parliament, not only as to the total amount but also as to the way in which the amounts voted are disbursed, and to take the proper steps to see that they are disbursed in accordance with the intentions of Parliament and in a way which properly reflects the care which the Government should have of the taxpayers' money.
I hope that all of the Members of the Committee will share the view that it is vitally important that when the public, the taxpayers, are asked to provide money for whatever purpose they should be assured that the maximum possible steps are taken to ensure care of that money and its disbursement in the proper way. The department which has primary responsibility for that is the Treasury although of course every department and every Minister shares that responsibility to some extent.
It is also important in the administration of a matter like legal aid that distinctions are drawn between matters that are still available for control and for intervention and matters that are not. The Committee will see that the provision that we are considering now has been carefully framed. Just in case it escapes me to mention it later, it was suggested that the inclusion of these words may have been as a result of some suggestion from an official of the Treasury. The noble Lord, Lord Mishcon, may take it that the Bill in its draft is the responsibility of the Lord Chancellor. The Bill is put to Parliament in these terms because I as Lord Chancellor consider it appropriate that provision should be made in this way.
The noble and learned Lord, Lord Simon of Glaisdale, expressed the view, which I share, that words that are totally unnecessary should normally not appear on Bills or Acts of Parliament. On the other hand, there are occasions when at first sight words which appear unnecessary may be of vital importance. The Committee will notice that there is an important distinction between Clause 39(1)(a) and Clause 39(1)(b) in this connnection.
There is no requirement for approval of the Treasury in relation to the Lord Chancellor paying to the boardout of money provided by Parliament—needed under Clause 5(2) of the Bill.
- (a) such sums as are required…to meet the payments"
That is an absolutely statutory obligation so far as we have gone. The requirement of Treasury approval comes only in Clause 39(1)(b) which covers the sums required by the board for expenditure other than the expenditure covered in Clause 5(2).
Clause 5(2) basically deals with the provision of legal advice, assistance and representation. The Lord Chancellor has a statutory duty under this clause to pay those sums. On the other hand, sums for administration of the board are not the subject of a direct statutory duty of that kind because it is 347 possible for them to be estimated with more precision and it is right that the board's expenditure should be a matter agreed with the Treasury. Of course it is said, and rightly said, that if the Lord Chancellor is hoping to have a reasonable life he will proceed by trying to get agreement with the Treasury. I have no doubt that those of my noble and learned friends and other noble and learned Lords who have had much more experience of Government than I have had will agree that it is wise, if possible, to get the agreement of the Treasury to one's plans. The ultimate success of a Minister may well depend upon his skill in that connection. But that is different from requiring the approval of the Treasury in other situations and in other ways.
In this case there is, as I said, an important distinction between Clause 39(1)(a) and Clause 39(1)(b). As regards Clause 39(1)(a), as I said, there is a statutory duty to pay the money and no approval of the Treasury comes into that obligation. Therefore once the hoard has incurred expenditure in terms of Clause 5(2), that is, for "advice, assistance or representation", the Lord Chancellor has a statutory duty to pay that money.
That ensures that the board will be in funds to meet the remuneration, for example, of the solicitors' branch of the profession and the Bar to which they have become entitled when they have done work for the board on behalf of citizens who require those services. Therefore the hoard will have a statutory entitlement, without condition of approval of the Treasury, as regards the basic entitlement to that money.
On the other hand, as I said, it is the Treasury that has the management of those funds and therefore it is right that the approval of the Treasury should be required as to the manner in which and the times at which the sums referred to should be paid to the board because obviously, apart from anything else, the Treasury has the management of the tax revenues—the funds that are to be used. As it is responsible for that it must have a say in determining how the sums are to be paid and at what times. But that does not qualify the underlying obligation to pay. It would not, for example, be possible for the Treasury to refuse out and out to pay any of the money which the Lord Chancellor is bound to pay under Clause 39(1).
That is the reason for this very important distinction between demand-led expenditure on the one hand, which is the expenditure which is covered by Clause 39(1)(a) of the kind that I have described—I use the phrase demand-led simply as a shorthand to save me repeating every time the full formula that I have tried to use—and the sums required for the expenditure of the board. So the phrase has a very important role to play. The way in which it is used throughout this provision makes an important distinction which I would regard personally as vital between the two types of money covered in Clause 39(1)(a) and Clause 39(1)(b).
As I said earlier, and as I shall repeat now, it is as appropriate as it is common form for it to be made plain in regulation making powers and in statutory provisions where public funds are involved that the 348 approval of the Treasury is required for the making of the regulations or for the disbursement of particular funds. That has been a feature of the great office of Lord Chancellor for many years.
I feel absolutely certain that my noble and learned friends Lord Hailsham of Saint Marylebone and Lord Havers and the noble and learned Lord, Lord Elwyn-Jones, have very often signed instruments which required the concurrence of the Lords' Commissioners of the Treasury signified on the instrument. It is perfectly in accordance with the machinery of Government and it is important in signifying the distinction between the responsibilities of different people in that situation.
It is particularly important if there should arise—as I hope fervently that there will not, at least as long as I occupy my present office—any question of judicial review of any decisions relating to this kind of matter. But if by any chance such a thing should happen it is absolutely vital that the responsibility which may accrue to a particular Minister should be identified with precision in the way that this particular clause does.
Therefore, with great respect to Members of the Committee who have expressed a contrary view, and having given the matter close attention, I must firmly say that it would be quite wrong to accept the amendments. Those phrases and the way they are used in the provision make distinctions which are vital in the administration of the scheme. I hope that the Committee will not accept either of the amendments.
I pass from that matter to the question of administration and the points made in that connection by the noble Lord, Lord Mishcon. There are more reasons than shortage of money for administrative delays. The noble Lord himself referred to the possibility of other administrative difficulties. I shall not repeat fully what he said. However, it is very important that the administration of the scheme should be efficiently managed. It is my belief that an important aspect of the formation of the board is that it should have management expertise on it in order to make cost-effective use of the money available for the administration of the scheme.
The Committee will know at least as well as I do that the mere fact that extra money is given does not necessarily mean an improvement in efficiency of administration. What is required is a good long-term strategy for dealing with the problems that arise and a management plan which is likely to be effective. For that reason, people with experience of management and administration have an important part to play.
I do not want to leave the matter without repeating what I said at earlier stages of the Bill as regards the Law Society. It has shouldered the burden of administration for civil legal aid for a considerable time. The administration of criminal legal aid has been distinct from that of civil legal aid. The Law Society is to be thanked and I am sure that my noble and learned predecessors will join with me in acknowledging the work that it has done in that connection for many years and will wish to thank it on behalf of the public.
349 However good administration is, there is always the possibility of improvement. One improvement which I have just mentioned is the possibility that by bringing together (as ultimately the board may well do) the different areas of legal aid administration, green form administration and other methods of funding advice, there may well be administrative savings and efficiencies introduced which could not have happened under the present scheme. One of the major purposes of the formation of the board and the provisions that have been made in relation to it is to seek—and I sincerely hope to obtain—administrative efficiency which will be cost-effective and give a good administrative service for this important social service of legal aid to people of small or moderate means.
I cannot advise the Committee to accept the amendments. I strongly invite it not to do so.
§ Lord Simon of Glaisdale
Before my noble and learned friend sits down, perhaps he will deal with the contents of lines 12 and 13, about which the noble Lord, Lord Mishcon, and I both asked.
§ The Lord Chancellor
I am obliged for that reminder. As regards conditions on the payment of sums, it is not easy to give precise details. One does not know how such matters may arise. It may well be that particular payments should be made conditional; for example, on the use of a particular method of dealing with administration. It may well be that the condition on payment of sums would be that they were required at a particular time. It may be that particular situations which had been envisaged as possibly requiring a certain amount in fact obtain. In other words, it may be possible to make a condition that certain sums should be paid only in certain contingencies—for example, as a result of some situation which would require them. There are many types of condition that might be appropriate in certain circumstances of efficient administration.
I hope that that is a sufficient indication of the content that paragraph (b) of subsection (2) has in mind.
§ Lord Renton
I have a further query on which I should be grateful for elucidation in addition to that raised by the noble and learned Lord, Lord Simon. Perhaps I may say that the noble and learned Lord was at one time Financial Secretary to the Treasury. Therefore he speaks with a great deal of knowledge of those matters.
I have been trying to follow the closely reasoned argument of my noble and learned friend the Lord Chancellor. I have been trying to link it up with the terms of the Bill. That involves a great deal of internal cross-referencing, which has not been altogether easy. I shall be grateful for assurance from my noble and learned friend that, referring back to Clause 5(3) and above all Clause 5(2), which is referred to in Clause 39(1)(a), the approval of the Treasury might be required in order for payments to be made in individual cases. If that is not the intention of the drafting, the drafting should be reconsidered. It will be absurd if the Treasury have to give approval 350 before money can be paid out within the powers given under Clause 5 to meet the needs of individual cases.
§ The Lord Chancellor
I can assure my noble friend that there is no question of that. I fear that my explanation, even if it was closely reasoned, has not been clear enough if that impression remains.
The approval of the Treasury is not required in respect of payments made under Clause 5(2) at all except in relation to the times at which and the manner in which they are to be made. The obligation to pay the sums under Clause 5(2) is an absolute obligation, once it arises, which does not require the approval of the Treasury. With the regulations under which the rates are determined, those under Clause 32 already require the approval of the Treasury. However, once that regulation comes into force so that, let us say, a person under the regulations is entitled to a certain sum of money from the board, then the Lord Chancellor, in terms of the statute as drafted, has an absolute statutory obligation to pay the board all of that money.
There is no intervention by the Treasury which can prevent that obligation from ultimately being fulfilled so long as Parliament provides the money. That applies to the whole of the funds which are required to discharge the obligations under Clause 5(2). Clause 5(3) provides for payments into the fund. The Lord Chancellor is bound to provide the difference between what is required to be paid out under Clause 5(2) and what comes in under Clause 5(3). It is only the balance that must be found.
The whole aggregate of those sums is subject, because of the way the provision is drafted, to an absolute statutory obligation on the Lord Chancellor to pay, although the Treasury has a say in the manner in which it is paid and the time at which it is paid. It would be quite ultra vires under the provisions for the Treasury to attempt to cut down a sum or anything of that kind. I hope that I have made it plain. I am sorry that I did not make it plain the first time.
Since the noble Lord mentioned it, I should also like to say that I always listen with the very greatest respect to the noble and learned Lord, Lord Simon of Glaisdale, because I know that he had a most distinguished career, which included being Financial Secretary to the Treasury. The first time I had the privilege of meeting him was at the Bar of this Chamber when he was dealing with a regional employment premium case which involved a great deal of detail. He was sitting in the position now occupied by my noble and learned friend Lord Havers and hearing a judicial appeal. I learnt very quickly to respect his views and interventions on matters of Treasury. I have not lost that respect and will never lose it.
§ Lord Campbell of Alloway
Having intervened in this matter, I thank my noble and learned friend for his very detailed and careful explanation, which now that I understand the position I find wholly satisfactory.
§ Lord Hughes
It is not in any thirst for legal knowledge that I venture to intervene but just mild 351 curiosity. The discussion has been based on the words,with the approval of the Treasury".The noble Lord, Lord Renton, has just referred back to Clause 5. The words used in that clause are,with the concurrence of the Treasury".I understood that it was always desirable to use the same language. Is there a difference between those two expressions?
§ Lord Simon of Glaisdale
Before the noble Lord, Lord Mishcon, sums up this debate, I should like to thank my noble and learned friend the Lord Chancellor for his very kind references to me, and ask him what difference it will make to any action of his, of any official of his department, the Chancellor of the Exchequer or any Treasury official if those words are omitted?
§ The Lord Chancellor
The answer is that if the board sued the Lord Chancellor under the provisions of the first part of Clause 39(1)(a) he would have no defence that he did not have the approval of the Treasury, whereas if the board sued the Lord Chancellor under Clause 39(1)(b) for administrative expenses he would have a complete answer that the approval of the Treasury had been refused. In that case it would have to join the Treasury—the Minister responsible for the Treasury and his department—to the matter.
That is a very important distinction. It would make a great difference to me and also make some difference in the responsibility of the accounts officer—the Permanent Secretary of the Lord Chancellor's Department. I am sure that he would need to be mighty careful that he did not agree to the payment of any sum under Clause 39(1)(b) for which he did not have Treasury approval, whereas under Clause 39(1)(a) he could agree to pay out, although the manner in which and the time at which the particular sum would be paid would be subject to the approval of the Treasury.
There is just one other point that I should mention. I tried to explain this matter as carefully as I could. It is a complicated subject and naturally I cannot encompass every possible detail. I have tried to take the broad headings. In the minor part of Clause 5(2), paragraph (d), there is the possibility of obtaining the concurrence of the Treasury as the noble Lord, Lord Hughes, says, in a determination for payments other than the principal payments to which I referred under subsection (2)(a), (b) and (c). Perhaps as a footnote I should add that for accuracy. I think that the distinction between "concurrence" and "approval" is rather a fine one. It may be more easy to get concurrence than approval.
§ 4.45 p.m.
§ Lord Mishcon
My remarks are likely to get neither from the noble and learned Lord.
First of all perhaps I may make the point briefly that it is terribly untidy legislation when one has to try to get some meaning from clauses—to which the noble and learned Lord referred with his usual 352 lucidity. I was trying to find my way through the maze. The noble and learned Lord is quite correct. Clause 39(1)(a) deals with matters for which approval of the Treasury is not expressly stated as being necessary. The coverage of that discretion—a power which he has—is defined as:such sums as are required (after allowing for payments by the Board into its legal aid fund under paragraphs (a), (b), (c), (d) and (f) of section 5(3)) to meet the payments which, under subsection (2) of that section, are to be paid by the Board out of that fundThe process of close analysis shows that obviously paragraph (e) is omitted from that definition, although the other paragraphs are covered. Therefore I immediately seek a definition of paragraph (e). On turning to page 5, having looked for clarity in regard to paragraph (e) because of the wording of Clause 39(1)(a), I find that Clause 5(3)(e) reads:the sums to be paid by the Lord Chancellor in pursuance of section 39(1)(a)".I go backwards and forwards with the kind of mental agility which the Lord Chancellor always shows but with which some Members of the Committee, including my humble self, cannot keep pace. In those circumstances I make my first point to him. Before this Bill leaves the Committee it would help to tidy up the references back and forward with some of the clarity that he himself has shown this afternoon.
I now come to the main point of difference between the noble and learned Lord and myself as well as other Members of the Committee. He said that for moneys that are required for all purposes except administration, including the payment out to the solicitors, barristers and so on, the approval of the Treasury is not required under the Bill. However, when it comes to the administration expenses of the board, the approval of the Treasury is required and that would be common form; it is usual.
I have been at the receiving end of his criticism—and possibly rightly so—every time I have asked for a provision about consultation to be included in the Bill. I have been asked whether I expect the Lord Chancellor—whoever he may be at the time—not to do what it is obvious he should do; namely, to seek the counsel of others, be it the Law Society, the board or the Bar Council. Either it is absolutely common form and necessary to seek the approval of the Treasury for the administration of the board's expenses or it is not. If it is necessary and it is common form, why is it in the Bill? If it is not so, why is the Lord Chancellor saddled with the necessity of obtaining the approval in the Bill? I could just about swallow its inclusion if the noble and learned Lord were to say: "It is my department's practice to do this. We are setting up a new board and I feel that it ought to be in the Bill. It would not necessarily be incumbent upon me to seek that approval".
I come to the words that I have sought to have omitted from the Bill; namely, those contained in subsections (2)(a) and (b). Here he is called upon not in regard to the amount of the money required for the administration—and I repeat, not in regard to the amount required—but to have the approval of the Treasury before he can determine the manner in which and the times at which the sums referred to in 353 subsection (1)(a) shall be paid to the board. He does not therefore have a complete discretion over subsection (1)(a)—the payment to the lawyers and the other matter—but he has to obtain the approval of the board to determine the manner in which the money has to be paid and the periods in which it has to be paid. He cannot impose conditions even on the payments of the sum referred to in subsection (1)(b).
We have a little definition of the kinds of conditions he has in mind. He cannot even do that without the approval of the Treasury. That cannot be common form. That cannot be usual and I do not see why those words are in the Bill.
I tried to unfetter the Lord Chancellor and his department from the manacles that are being put upon him, quite unnecessarily in my view. What frightens me are the examples that I tried to give the noble and learned Lord of the shortages that have appeared in the past with regard to the Law Society and the Bar Council—against whose efficiency no complaint of which I am aware has ever been made, certainly not by the Lord Chancellor—and the conditions under which they had to function. They found huge delays occurring not as a result of inefficiency but through lack of funds or the way in which they were handed out.
It is for those reasons that I shall press the amendment to which we next come. However, I promise faithfully not to address Members of the Committee upon it because I have spoken upon it in this debate.
§ Amendment, by leave, withdrawn.
Lord Elwyn-Jones had given notice of his intention to move Amendment No. 58B:
Page 31, line 8, leave out ("with the approval of the Treasury").
§ The noble and learned Lord said: The same applies to Amendment No. 58B.
§ [Amendment No. 58B not moved.]
Lord Mishcon moved Amendment No. 58C:
Page 31, leave out lines 11 to 13.
§ The noble Lord said: I intend to ask for the opinion of the Committee on Amendment No. 58C. I promised not to make a further speech and I shall keep my promise.
§ The Lord Chancellor
I wish to reply because I have not dealt with this. I understand the request now is that the whole of this provision in Clause 39(2)(b) be left out. I have sought to give an example; I can give another.
If it was considered that the total number of applications for legal aid might exceed a certain number, it might be very reasonable to provide additional money as a contingency in case that happened. If that happened, the additional money would be forthcoming. In keeping control of taxpayers' money there is much to be said for not handing it out if it is unnecessary.
If, for example, there were some relationship—I am not suggesting that there would be a close one but 354 there might well be a relationship—between the amount one requires for administration and the amount of business one has to handle, and if, for example, by a certain time in the year the number of legal aid applications that the legal aid board had received exceeded a certain amount, it might be right that additional money should be released for the administration—to increase the staff or something of that kind. Therefore to have a contingency fund of that kind might be a highly desirable feature of the administration.
If one does not have such a provision as this, there is at least a risk that one cannot do that. One has either to vote a whole sum or none at all. That would remove an entirely desirable administrative technique from this Bill. Why on earth should Members of the Committee wish to do that, I ask respectfully and rhetorically?
§ Lord Denning
Perhaps I may add a word on this. As a result of the withdrawal of the earlier amendments we have in the Bill the words,with the approval of the Treasury".But if they are to remain as being desirable there seems to be no possible objection to keeping in subsection (2)(b). It is a perfectly good administrative provision to insert and to keep in the Bill.
§ Lord Mishcon
Perhaps I can immediately tell the Committee that I am in error. I come before the Committee with an apology, but I realise that I cannot put myself right. What I meant to do was to go ahead with obtaining the Committee's view on Amendment No. 58B that the words,with the approval of the Treasury",be omitted at page 31, line 8. On our side we withdrew the amendment. I cannot put that right now. I shall have to come back to the matter at Report stage.
There would be no point in my putting to the Committee Amendment No. 58C when the pith of such remarks as I made, and the whole basis of them, was that I wanted the words,with the approval of the Treasury".omitted. I apologise. It is not the first time that I have erred; and it will not be the last. However, I must try to put myself right at Report stage.
§ Lord Elwyn-Jones
My noble friend takes too much upon himself. The error was mine. I am sorry. We shall have to put the matter right at Report stage.
§ Amendment, by leave, withdrawn.
§ Clause 39 agreed to.
§ Clause 40 [Definitions]:
§ On Question, whether Clause 40 shall stand part of the Bill?
§ Lord Airedale
Clause 40 is a definition clause. It says among other things that,'the Board' has the meaning assigned to it by section 2(1)".Clause 2 says that the board shall be known as the Legal Aid Board. Therefore why does not Clause 40 say that "the Board" means the Legal Aid Board?
355 That is shorter than saying that "the Board" has the meaning assigned to it by Section 2(1) and it saves the reader from having to turn back 30 pages to find the answer.
§ The Lord Chancellor
The only difficulty is that in Clause (2)(1) in the brackets it says,(in this Act referred to as 'the Board')".Therefore one would be in breach of that provision if one were to follow the noble Lord's suggestion. But we shall be happy to consider any improvement. I shall ask the parliamentary draftsmen to consider it.
§ Clause 40 agreed to.
§ Clauses 41 and 42 agreed to.
§ Clause 43 [Short title, commencement and extent]:
§ On Question, Whether Clause 43 shall stand part of the Bill?
§ Lord Renton
May I ask my noble and learned friend whether he is able to give any indication as to his intentions with regard to bringing into force various Parts of the Bill?
§ The Lord Chancellor
I am certainly anxious to bring into force as soon as possible the part which gives to the Legal Aid Board the responsibility for the administration of civil legal aid. I think that is as far as I can go at the moment. As I indicated at Second Reading, I hope that we shall be able to establish the board as a shadow board before it has formal statutory responsibility. Progress thereafter will depend upon consultations with the members of the board once it is established. Experience has taught one over the years that when one is making a major change it may be wise not to go too fast but to consult fairly widely in the course of making these arrangements. That is as far as I am able to go at the moment.
§ Clause 43 agreed to.
§ Schedule 1 agreed to.
§ Schedule 2 [Civil Proceedings: scope of Part IV representation]:
§ [Amendments Nos. 58D to 58F not moved.]
§ 5 p.m.
Lord Gifford moved Amendment No. 59:
Page 36, line 24, at end insert—
("(8) Proceedings before a Coroners Court.").
§ The noble Lord said: In moving this amendment let me declare my interest as a barrister remunerated in part under the legal aid fund. This is an important amendment which seeks to allow for legal aid to be granted so that the properly interested parties who appear before a coroner's inquest may be represented by a lawyer remunerated under the legal aid scheme if they do not have sufficient means.
§ I should like to introduce the amendment by drawing attention to the great value of the inquest 356 procedure in our jurisdiction. When there is a sudden and unexplained death or a death under unusual or suspicious circumstances, it is very right and proper that there should be a public examination before a judicial officer (sitting in certain cases with a jury) in a hearing in which those who are properly interested may take part. The properly interested parties include particularly parties who may be held responsible for the fatality, and the next of kin of the person who has died.
§ Inquests are taken very very seriously by interested parties. When, for instance, there is a death in a factory it is common for the owner of the factory to be represented in order to protect his interests. When there is a death in unexplained circumstances in a police station, similarly the police are represented so that their position can be made known.
§ The next of kin in such cases are placed in a terrible position. They are in the first place the bereaved; they have suffered the death of a loved one. They are desperate to know why that death has happened. They want to take advantage of the opportunity afforded by the law to appear and have any party who may be responsible for the death questioned. But if they have no means, then legal aid is not available to pay for their legal representatives. They have either to rely on the goodwill of a lawyer appearing without a fee—and there are many members of the Bar and solicitors who have appeared without a fee particularly in cases of controversy. Alternatively they go unrepresented in which case the facts of the death cannot be properly inquired into. Having appeared at inquests, I can tell the Committee that the presence of a lawyer to ask the right questions of the right witnesses is essential for justice to be properly done in a coroner's inquest.
§ I remember a terrible series of fatalities which took place about seven years ago when a fire swept through Clanricarde Gardens, a tenement block in West London, and killed a number of the tenants. At the inquest the landlord was represented by a distinguished lawyer who called expert witnesses to try to prove that the fire was caused by arson by one of the tenants. The next of kin disputed that suggestion and believed that the fire was the responsibility of the landlord. A number of questions were asked by the lawyers who appeared; questions that could only asked by lawyers. A substantial amount of information was gathered and in the end justice could be done and seen to be done.
§ There are many other cases where proper inquiries have satisfied the next of kin either that there was no blame attached to someone who might be under suspicion—and that is equally important—or that there was some further cause for inquiry if necessary by civil action.
§ There are not so many inquests that the inclusion of this provision would add enormously to the expenditure of the Legal Aid Board. By passing the amendment the Committee could ensure that justice was done to a number of bereaved people in times of great difficulty by allowing for their lawyers to use this valuable inquest procedure to question the circumstances and the causes of the death of someone they loved. I beg to move.357
§ Lord Elwyn-Jones
I should like to support the amendment. Those of us who have had experience in coroners courts are well aware of the importance of next of kin and families being represented. In my experience the powers of coroners to intervene seem to have been far more powerfully exercised than I would have expected—I fear to the disadvantage of next of kin and families. However, that may have been one experience in particular circumstances.
Generally speaking the proceedings in coroners' courts arc of immense importance to next of kin and families. The kind of verdicts that will be arrived at are important, for instance, to the reputation of the deceased. They are important particularly to dependants—to families. Life insurance does not cover the contingency of suicide. It is of very great importance to families to be able to establish a proposition to displace the allegation and fear of suicide. I do not like mentioning specific cases in which I myself was involved, but it is of great importance in my submission that families and next of kin of small or moderate means should have the right to legal aid.
It is significant that the 35th annual report of the Lord Chancellor's Advisory Committee suggested extending representation to proceedings before coroners. That committee has high authority, independence and monitoring capacity. The noble and learned Lord wishes to continue to have the services of the Committee. Its judgment is of very great importance, and I venture to think it will have weight upon him. I urge this from my own personal experience. In some cases it would have been of very great importance to have this available, and I hope accordingly that the amendment will be accepted.
§ Lord Pitt of Hampstead
I should like to support the amendment. I am a layman in this matter, but in my medical practice I have known many occasions when bereaved persons have been very unhappy about coroners' inquests. On all those occasions I had formed the impression that if they had been able to provide themselves with legal representatives, they would have been less unhappy and I should have seen less of them. Therefore I should like the noble and learned Lord the Lord Chancellor to bear that in mind in deciding whether to accept the amendment. Many people do not understand what has taken place and it has not been properly explained to them. They emerge unhappy about the situation but had they had a good lawyer looking after their interests they would not have felt that way. I should like that point to be borne in mind.
§ Lord Denning
It is many years since I appeared in a coroner's court. It was a case involving a man who had been killed on a railway line and I was instructed by the railway company. The relatives of the man appeared in person and they succeeded in obtaining a verdict in their favour against me as a lawyer.
I believe it to be unnecessary to have legal aid in all such cases. It may be helpful in some cases but one will find that the relatives or those concerned are helped by a lawyer who probably takes no fee. In the great majority of cases there is no need for a lawyer. 358 This is not a case for legal aid but it is one for the relatives and their friends to obtain legal representation, if they wish, at their own cost.
§ Lord Wigoder
I should like to add a comment in support of the amendment. There are many tribunals where the person who presides has such legal experience that, to some extent, he is able to compensate for the fact that one of the parties is not legally represented. That does not necessarily arise in coroners' courts because the coroner is often a person of limited legal experience, although he may have substantial medical experience. It would assist the fairness of proceedings in that particular tribunal if there was legal representation of both sides.
§ Lord Mishcon
I should like to add one observation to what fell from the noble and learned Lord, Lord Denning, and which, if I may say so, fell on an icy and stony floor. I should like to put a question to the Committee: I wonder whether any Member of the Committee will reply if what the noble and learned Lord has said is correct. I know of no case involving an accident in which an insurance company has thought that it might be at liability where the insurance company has relied on any official or lay representative to represent it at an inquest. Without exception, it properly thinks it necessary to instruct solicitors and counsel. Why put the family of someone who has been killed in an accident at a disadvantage when they fall within the limits of the legal aid financial provisions?
§ The Lord Chancellor
I sympathise with the spirit of this amendment. Very trying circumstances may prevail when families are involved in proceedings before a coroner's court. As the noble Lord, Lord Wigoder, has pointed out, the coroner is not necessarily legally qualified. I think that that suggests the nature of the tribunal in question; it is intended to be relatively informal from a legal point of view. The coroner has the responsibility of inquiring into the matters.
From his experience, the noble Lord, Lord Pitt, has indicated to the Committee that families may leave feeling very unhappy, but that if they had had a good lawyer they would have better understood the situation and that would have been an improvement. I should like to say at once that I well understand that point and welcome his intervention. I should not like it to be thought that this Bill was one for intervention by lawyers alone. From my point of view, our deliberations profit from the intervention of Members of the Committee other than lawyers.
The difficulty is that all those matters are matters of priority in regard to the funds available. So far as I have been able to judge—and this is not a judgment made for the first time by me—the coroner's court is not at the top of the list of priorities for the introduction of legal aid. I sympathise with the situation of relatives in a position such as this. However, at the moment I do not feel that legal aid for all coroners' courts is a proper answer, or that it would be the highest priority in extending the present scheme. Therefore, while I have sympathy with the spirit that lies behind the amendment, and with the 359 concerns of the noble Lord, Lord Gifford, in moving it, I cannot advise the Committee to accept it.
The scope of legal aid is a matter to be kept constantly under review. If efficiency produces a sufficient amount of savings, who knows what money might be available? However, in the present situation, and with the priorities that I have so far seen, I cannot accept the amendment.
§ Lord Gifford
I regret that I find the noble and learned Lord's answer to be very unsatisfactory. I must first point out to him that the coroner's court is not an informal court. There are many coroners who conduct the proceedings with humanity and with a sense of concern for the grief of the next of kin, but when controversial facts are being examined the proceedings are far from informal. The representatives of those who might be at fault—and my noble friend Lord Mishcon has given as an example the insurance companies—question the witnesses at great length in order to bring out every possible fact which would support the lack of negligence or the innocence of their client. The next of kin have the right to, and do, cross-examine at length when they are legally represented, and it is necessary that they should do so. Members of the Committee should be under no illusion that a person without a lawyer is at a great disadvantage.
It is then said that this is not a matter of high priority; that justice for those who have been bereaved, in the shape of the right to ask legitimate questions as to why their relative has died, is not a high priority. The legal aid scheme applies in civil cases across the board in the High Court and in the county court. That is subject to the proviso which would apply overall—that it is reasonable for a legal aid certificate to be granted. That proviso would also apply to these cases. Therefore, to say that this kind of case is somehow less worthy than the generality of civil claims will not, in my submission, be tenable.
The situation is so unsatisfactory, and so little has been said to indicate that there is any chance that the noble and learned Lord the Lord Chancellor will change his mind and reconsider, that I wish to divide the House.
§ 5.20 p.m.
§ On Question, Whether the said amendment (No. 59) shall be agreed to?
§ Their Lordships divided: Contents, 53; Not-Contents, 113.360
|DIVISION NO. 1|
|Airedale, L.||Gallacher, L.|
|Attlee, E.||Gifford, L.|
|Aylestone, L.||Graham of Edmonton, L. [Teller.]|
|Callaghan of Cardiff, L.||Grimond, L.|
|Caradon, L.||Hanworth, V.|
|Carter, L.||Harris of Greenwich, L.|
|Cledwyn of Penrhos, L.||Hirshfield, L.|
|Elwyn-Jones, L.||Houghton of Sowerby, L.|
|Ennals, L.||Hughes, L.|
|Ewart-Biggs, B.||Hunt, L.|
|Fitt, L.||Irving of Dartford, L.|
|Jeger, B.||Prys-Davies, L.|
|Kilbracken, L.||Ritchie of Dundee, L.|
|Kirkhill, L.||Seear, B.|
|Llewelyn-Davies of Hastoe, B.||Serota, B.|
|Lloyd of Kilgerran, L.||Simon, V.|
|Longford, E.||Stewart of Fulham, L.|
|Lovell-Davis, L.||Stoddart of Swindon, L.|
|Milford, L.||Underhill, L.|
|Mishcon, L.||Wallace of Coslany, L.|
|Molloy, L.||Wells-Pestell, L.|
|Morris of Kenwood, L.||White, B.|
|Perry of Walton, L.||Wigoder, L.|
|Phillips, B.||Winchilsea and Nottingham E.|
|Pitt of Hampstead, L.|
|Ponsonby of Shulbrede, L. [Teller]||Winterbottom, L.|
|Abinger, L.||Hylton-Foster, B.|
|Airey of Abingdon, B.||Jenkin of Roding, L.|
|Aldington, L.||Joseph, L.|
|Alexander of Tunis, E.||Killearn, L.|
|Ampthill, L.||Kitchener, E.|
|Arran, E.||Lauderdale, E.|
|Auckland, L.||Long, V.|
|Bauer, L.||Lothian, M.|
|Belhaven and Stenton, L.||Lucas of Chilworth, L.|
|Beloff, L.||Luke, L.|
|Belstead, L.||Mackay of Clashfern, L.|
|Blatch, B.||Macleod of Borve, B.|
|Blyth, L.||Malmesbury, E.|
|Boyd-Carpenter, L.||Margadale, L.|
|Brabazon of Tara, L.||Merrivale, L.|
|Brougham and Vaux, L.||Mersey, V.|
|Broxbourne, L.||Monk Bretton, L.|
|Bruce-Gardyne, L.||Montagu of Beaulieu, L.|
|Buccleuch and Queensberry, D.||Morris, L.|
|Butterworth, L.||Munster, E.|
|Caithness, E.||Murton of Lindisfarne, L.|
|Campbell of Alloway. L.||Nelson, E.|
|Campbell of Croy, L.||Nelson of Stafford, L.|
|Carnegy of Lour, B.||Newall, L.|
|Carnock, L.||Norrie, L.|
|Coleraine, L.||Nugent of Guildford, L.|
|Colwyn, L.||Onslow, E.|
|Cork and Orrery, E.||Orkney, E.|
|Cottesloe. L.||Orr-Ewing, L.|
|Craigavon, V.||Pender, L.|
|Cullen of Ashbourne, L.||Peyton of Yeovil, L.|
|Dacre of Glanton, L.||Quinton, L.|
|Davidson, V. [Teller.]||Rankeillour, L.|
|Denham, L. [Teller.]||Renton, L.|
|Denning, L.||Rodney, L.|
|Dormer, L.||St. Davids, V.|
|Dulverton, L.||Sanderson of Bowden, L.|
|Dundee, E.||Sandford, L.|
|Elibank, L.||Selkirk, E.|
|Elliot of Harwood, B.||Shaughnessy, L.|
|Elliott of Morpeth, L.||Simon of Glaisdale, L.|
|Elton, L.||Somers, L.|
|Faithfull, B.||Sudeley, L.|
|Ferrier, L.||Suffield, L.|
|Fortescue, E.||Teynham, L.|
|Fraser of Kilmorack, L.||Thomas of Gwydir, L.|
|Glenarthur, L.||Trafford, L.|
|Grantchester, L.||Trumpington, B.|
|Gridley, L.||Ullswater, V.|
|Haig, E.||Vaux of Harrowden, L.|
|Hailsham of Saint Marylebone, L.||Ward of Witley, V.|
|Havers, L.||Wilberforce, L.|
|Hesketh, L.||Wolfson, L.|
|Hives, L.||Wynford, L.|
|Home of the Hirsel, L.||Young, B.|
§ Resolved in the negative, and amendment disagreed to accordingly.361
§ 5.27 p.m.
Lord Elwyn-Jones moved Amendment No. 59A:
Page 36, line 24, at end insert—
(". Proceedings before the Social Security Commissioners.
. Proceedings in the Immigration Appeal Tribunal.
. Proceedings in the Vaccine Damage Tribunal.").
§ The noble and learned Lord said: This amendment arises from the provisions in that part of the Bill dealing with civil proceedings. It sets out in Part I of Schedule 2, headed "Description of Proceedings", the various proceedings that are covered by legal aid. This amendment proposes to add to that list, which includes seven diverse proceedings, three others: proceedings before the Social Security Commissioners, proceedings in the Immigration Appeal Tribunal and proceedings in the Vaccine Damage Tribunal.
§ Our submission is that each of those proceedings is of very great importance to the parties which appear before them—often parties with small or moderate means and the very type that ought to be protected by legal aid—and that legal aid should also be made available to them. It is significant that again I call in aid the wisdom and experience of the Lord Chancellor's Advisory Committee, which recommended that legal aid should be granted to the immigration appellate authorities for applications to the Immigration Appeal Tribunal, the Social Security Commissioners and the Vaccine Damage Tribunal. That was done in the 35th annual report of the advisory committee. We have that authority and support for these recommendations.
§ The first category of proceedings before the Social Security Commissioners, which is a court of resort to those who have been refused the vital Plimsoll line of defence of a social security benefit, concerns proceedings of very great importance to a large section of our community dependent upon the help of social security for survival and continuity. It is in our submission a category of proceedings where those unable to afford the funds for legal representation should be represented. Very often issues of considerable legal complexity arise in regard to the interpretation of the various provisions for social security; provisions which go beyond the resources and capacity of unrepresented citizens to present to the commissioners. That is the first of the three categories.
§ Immigration Appeal Tribunals are vital and sometimes nearly of life and death significance for those who fear being sent back to the place from whence they came and who want to place before the tribunal the facts upon which they seek to justify their stay in this country. Again, this is a very important aspect of our law. It has been said more than once that our justice can be tested by the way in which we treat foreigners who come to this country, particularly those who have escaped persecution and poverty to come to the shelter of these shores. Very often they find the final resort of the appeal tribunal of great significance in their lives. There again we think that this is an appropriate tribunal.
§ Then there is the sadder category—I shall not say the saddest—of the dependants and families of those grievously injured by vaccine damage or who have 362 lost their lives because of vaccine damage. It is a touching and sad section of our community; they are of inadequate means to present their cases and a grave injustice may be done to people in this category who, more than anyone, need legal aid. In those circumstances I hope that the noble and learned Lord, not only out of a sense of compassion but also of justice, will see that legal aid is available in all three categories. I beg to move.
§ Lord Denning
I suggest that the Committee should not accept this amendment. I have not appeared before those bodies individually, but in the Court of Appeal we heard many cases which had been before the Social Security Commissioners and before the Immigration Appeal Tribunal.
I first deal with social security. As a rule, the amounts involved are small to the general population; a few pounds or a few shillings a week, or whatever it may be. First, they are dealt with by the insurance bodies themselves. There is then an appeal from that and then to the Social Security Commissioners. The number of regulations that have to be interpreted is enormous and difficult. There is a whole body of case law on the proper interpretation of these regulations brought Out by the Ministry in large volumes. The Security Commissioners know the regulations backwards and far better than any lawyer who appears before them. The Commissioners deal with most of them on paper and they decide the cases themselves. If there is a case which needs argument, I am sure it can be well dealt with by the Security Commissioners themselves. There is no need to encumber our system with the right to legal representation and legal aid at the expense of the taxpayer in regard to those bodies.
The Immigration Appeal Tribunal falls within the same category. The cases are all dealt with by adjudicators very carefully and sympathetically. The appellants go on from there to appeal and eventually, if needs be, to an Immigration Appeals Tribunal. That Tribunal is expert and knows all the law and the considerations about it. It always gives written decisions and having seen its work I believe that in none of these cases is it necessary to give legal aid as of right. The members of the tribunals know the law perfectly well and probably better than any of the lawyers who would appear before them.
I do not know much about the Vaccine Damage Tribunal, which is rather new. It should not be made the subject of legal aid, as of right, at the present day. I am not in favour of the amendment.
§ Lord Wigoder
I support the amendment, and I do so with a modest knowledge of the topic. I served for some six years on the Council on Tribunals which not only had to examine the workings of all the tribunals, but individual members spent a great deal of time visiting individual tribunals of all kinds in all parts of the country. One saw a great many of the proceedings that we are now discussing.
I should like to say that when the tribunal system was first set up it was hoped that to a large extent it would be an informal procedure. It was inevitable—and it has in fact happened—that formality has taken over in regard to some of the major tribunals. That is 363 certainly the case regarding the three categories in the amendment.
They are all matters of considerable importance. Appeals (not the first hearings) can be substantial matters, measured not in terms of a few pounds, as suggested by the noble and learned Lord, Lord Denning. A few pounds can mean quite a great deal to a poor person even it it does not mean all that much to some of the Members of the Committee.
The proceedings at the Immigration Appeals Tribunal and the Vaccine Damage Tribunal need no elaboration as to their importance to the individuals involved. In all those three categories of cases not only is there now very considerable formality before those tribunals, but there has also developed a substantial body of case law in relation to each of them. It is case law which is not accessible or easily available. It requires a skilled lawyer to discover what are the authorities to be referred to in cases which are heard before those three tribunals.
I know that the noble and learned Lord will express his sympathy with the principle. It has been done by governments for many years now by extending legal aid to a further number of tribunals. No doubt the point will be made that it is a matter of expense, when the funds are available, and so on. That argument is getting a little thin as we approach a budget in which it appears that the funds of the Government are more readily available than they have been over the past 10 or 15 years. Therefore, one hopes that one will not hear too much about the privations which the Treasury has to suffer which makes it impossible to do what the noble and learned Lord the Lord Chancellor would, in his heart, wish to do. It will be of interest if the noble and learned Lord can tell us, when it is possible to extend legal aid to the tribunals, which tribunals are going to have priority. The noble and learned Lord indicated in relation to coroners' courts that, to use his words:Coroners' courts are not at the top of the list".May I venture to ask what is at the top of the list?
I ask that in all innocence. I am reminded of Jack Benny, I think it was, the American comedian, who used to claim that he had been voted the second most popular comedian in the world. When he was asked, "Well, who is the most popular?" he said, "Well, all the other ones tied first equal". I rather suspect that we are going to be in the position today where these tribunals and the coroners' courts all come second equal. but there is no first candidate to which we could at least leave this amendment knowing that when funds are available legal aid would be extended.
§ Lord Renton
I feel strongly that there should not be the right of legal aid for proceedings in the Immigration Appeal Tribunal. If that were granted the pressure on the Legal Aid Board would become tremendous because there is a great demand for people from various overseas countries to enter our overcrowded country. Although in many of the cases the board would not consider it right to issue a certificate, nevertheless the pressures would be enormous. I therefore feel that we should certainly not grant legal aid in such circumstances. I have an open mind on the other two matters, and I should be 364 interested to hear what my noble and learned friend has to say.
§ 5.45 p.m.
§ The Lord Chancellor
When decisions were taken many years ago to take certain cases out of the courts and send them to various forms of extra-court tribunal, the ideal was some informal sort of proceedings in which ordinary people, non-lawyers, could go along to take part. It is still surely the ideal that that should happen. As the noble Lord, Lord Wigoder, said—and he speaks with the authority of his experience on the Council on Tribunals—a degree of formality that may not have been intended by those who originally set up these tribunals has crept in.
It may be that that development has to some extent been contributed to by the nature of the representation available in some of these tribunals, but on the other hand sometimes these expectations of simplicity are disappointed by the complexity of the circumstances to which the very simple law that the Committee enacts has to be applied. Anyway, I accept of course that matters are more difficult than those who set up these tribunals originally anticipated—and I am now thinking generally and not of these particular ones—and have developed in a way that perhaps is not in accord with what they wanted.
My noble and learned friend Lord Hailsham was faced with this problem some time ago, and instead of just concentrating on legal aid there has been set up a research project in relation to tribunals in order to examine the effectiveness of representation, both legal and non-legal, for parties before tribunal hearings as compared with other forms of tribunal assistance; for example, to the judges, the people who actually operate the tribunals. It may well be that it is help to them that would be most useful; not, I think, in relation to the tribunals that we are particularly speaking about in this amendment.
This research project is studying four tribunals: the immigration tribunals; industrial tribunals; mental health tribunals; and social security tribunals. That is the Social Security Appeal Tribunal, not the commissioners. The commissioners are the very top layer of the statutory authorities in social security, and this is the tribunal referred to as No. 1 on this list.
I well understand that there is a desire to extend some form of representation or help in these tribunals. If I had at this very moment to assign a No. 1, I would not be very far from the first one mentioned in this amendment. I must be quite frank about that. But of course I am speaking as a result of what I have heard over a fairly short time, and I have no doubt that representatives from some other tribunals might have a strong case to put which I have not yet had the opportunity of hearing. But in all frankness, since the noble Lord, Lord Wigoder, asked about it, I personally feel that the Social Security Commissioners is a tribunal which would have high priority in having some form of legal representation before it.
Even if Members of the Committee thought that that was a desirable objective and should happen 365 now, there is an important question as to the manner in which help should be given. This amendment makes it by way of legal aid; that is to say, a statutory entitlement to legal aid with a means test and all the rest of it. There may well be other methods of assistance which would be more appropriate in this kind of matter. For example, in relation to the immigration work the Home Office has, under the Immigration Appeals Act 1969, funded in part—90 per cent.—a statutory body which does assist.
There are other possibilities in relation to, for example, the Social Security Commissioners. It might well be that if it was wise to extend some form of help there, it should be under Part III of the Bill rather than under Part IV with its full means test and the like. There is of course also the possibility of the Part II powers of the Bill. Therefore, even if the principle was correct that some form of help should be decided upon, I would not suggest to the Committee that this amendment necessarily would be the right way to go about it.
The submission that I would put to the Committee is that this is a matter to be kept under review once the structure of legal aid is determined. When I say "legal aid" in that context, I mean the whole subject matter of this Bill. Reviews have taken place from time to time, and extensions as a result of them. For example, in 1982 legal aid was extended to the mental health review tribunals, and my noble and learned friend Lord Hailsham has the credit for that. He was the Lord Chancellor at that time. I can assure the Committee that this is a matter in which I am deeply interested, and Members of the Committee can take it that I would be very interested in reviewing the position in the light of what comes out of the research project.
The research project started work in April 1987 and is expected to report in March 1989. It might well be that the situation could be reviewed very fully in the light of that with the board in position. At the present moment, in my submission, apart from the general point that I made, it would be quite unwise to pass this amendment because it would make the representation in the form of fully means-tested legal aid under Part IV.
§ Lord Elwyn-Jones
I am grateful that the noble and learned Lord has indicated that there is an area of need here that needs filling. He is not disposed at this stage at any rate to say that legal aid is the answer. I feel sufficiently encouraged by what has been said, but sufficiently impressed with the urgency now—not waiting for two years or one year—to give the kind of assistance that legal aid could give in these categories. In the circumstances, and with the knowledge that there is still a Report stage, I ask leave to withdraw this amendment.
§ Amendment, by leave, withdrawn.
Lord Mishcon moved Amendment No. 59B:
Page 36, line 24, at end insert—
(". Arbitration proceedings.").
§ The noble Lord said: I hope that this amendment will commend itself to the noble and learned Lord for 366 two reasons; first, it is just in the light of what is happening now in our country; and secondly, in my view, and in the view of those who know much more about these matters than I do, it would be an economy for the legal aid fund.
§ As regards what is happening now generally, there are many arbitration agreements which the Committee may feel belong to the field of high commerce and international business. Equally, in this day and age, there are many arbitration clauses in agreements involving "little" people. In consumer agreements people may be at a great disadvantage when they find that the arbitration clause is binding whereas had there been a court case they would have been granted legal aid. The Consumers' Association is anxious that the amendment should succeed.
§ There is another class of case about which Members of the Committee may have received some literature. The chairman of the Official Referees' Bar Association has been sending out a memorandum advocating what I am now about to say. The chairman, Mr. Butcher, who is one of our leading counsel and is a well known official referee member of the Bar, will obviously impress the Committee. He draws attention to the fact that many householders—and they can be "little" people —find themselves in great difficulty as a result of building contracts where there is an arbitration clause. Quite recently one felt that this was no longer a great worry because of a case, Fakes v. Taylor Woodrow Construction Limited, in 1973 which went before the Court of Appeal. In that case the decision was made that legal proceedings in a construction dispute would not be stayed for arbitration where the plaintiff was impecunious because legal aid was not available for arbitration. That was the voice of justice and mercy which is so continually a mixture in our courts. The plaintiff was allowed to continue with a case in spite of the arbitration clause, and the proceedings in our courts were not stayed.
§ Unfortunately, and as a result of a recent decision, that is no longer the position in the majority of such building cases. In the case of Crouch v. Northern Regional Health Authority in 1984 it was decided that any dispute which involved the opening-up of an architect's certificate or any similar certificate must be arbitrated since the courts do not have the jurisdiction to open up such a certificate. As in most of the building cases the question of the architect's certificate is very much a consideration; it means that here again the person who is bound by the arbitration clause suffers a great handicap.
§ I said that this would effect an economy. In my humble submission, that would really be the case. As a rule arbitrations are very much less expensive than litigation in our courts. By adopting this proposal we would save court fees and we would reduce the heavy pressure that now exists upon court officials throughout the land. It would encourage people to adopt this cheaper form of justice which is just as efficient, and it would enable matters to be concluded—matters which affect "little" people in a large way—through the process of arbitration. I beg to move.367
§ Lord Denning
I seem to be against all these amendments. Arbitration is a consensual matter between the two parties to the contract or whatever it may be. The contract provides for what is to happen—whether the architect's certificate is to be final, what will happen if there is an arbitration, who will hold it and so forth. It is a consensual process in which the state is not involved.
In the City of London commercial arbitrations are very important and they may be expensive. Of course there may be cases involving house building and so on with an arbitration put into the printed form. It is a consensual matter and the state should not be involved. There should not be any right to legal aid before it because parties have provided for their own tribunal by agreement. Let them therefore provide for their own representation before it. I am against the state granting legal aid in these matters.
§ Lord Broxbourne
I am sorry to differ from the noble and learned Lord, Lord Denning, to whom I, in common with most noble Lords, always listen with great respect. But I rise to support the amendment so eloquently and persuasively moved by the noble Lord, Lord Mishcon. I hope that I do not observe a twinge of pain or apprehension across his features when I make that announcement. Perhaps he is trying to recall the words of Virgil:Non tali auxilio nec defensoribus istis".
§ Lord Mishcon
I am grateful to the noble Lord for his gracious remarks. That quotation was in my mind as he was uttering it.
§ Lord Broxbourne
It is a far cry from the days when the noble Lord used to honour me occasionally with his instructions in a professional capacity.
I preface my brief reasons for supporting the amendment with this preliminary observation. I have no pecuniary interest to declare in the sense that comes within the practice of the House in regard to declaration of interest. I have certain interests of a more general character which perhaps I ought to confess to the Committee, if that is the mot juste, so that it can discount any natural partiality I may have in favour of the subject matter of the amendment.
Though I am no longer in practice at the Bar I am a Fellow of the Chartered Institute of Arbitrators, an Associate of the Royal Institution of Chartered Surveyors and a Vice-President of the National House Building Council, which the Committee may know exists to prescribe and enforce good standards of building construction and, to heap Pelion on Ossa, I am concerned with that publication now known as Walker-Smith on the Standard Forms of Building Contract. I do not suppose that many Members of the Committee are much concerned with that esoteric if unexciting publication. It went through several decades under the blameless title of The Annotation of the Standard Forms of Building Contract. My kind publishers have now renamed it, though I tease them by saying that I notice that they waited until I changed my name before they gave it that name.
The reasons for my support are very similar to those so well expounded by the noble Lord. I too 368 received this memorandum from Mr. Anthony Butcher, QC, an erstwhile formidable forensic opponent, still and always a valued friend. He writes in his capacity as chairman of the Official Referees' Bar Association. I do not think it existed in my day but I have no doubt that it does very valuable work.
I adopt the reasoning of the noble Lord, Lord Mishcon, particularly in regard to these building disputes which normally do not occur to people in the context of legal aid, because in the normal building dispute both parties—builders and building owners—are people of substantial means. But of late of course there has come this new category, to which the noble and learned Lord, Lord Denning, referred, of the householder who has a construction dispute in regard to his dwelling house.
He may very often be eligible, or would be eligible, for legal aid but he is debarred by this paradoxical situation. He could get legal aid if he brought his case before the Official Referee's court. Unless this amendment is accepted, he cannot get legal aid, if he goes to arbitration. That is clearly a paradoxical situation, that he should be compelled by reason of the decision in the Crouch case to have recourse to a forum which denies him legal aid. The reason, as given in the Crouch case, is because of the inability of the courts to review an architect's certificate.
The noble and learned Lord, Lord Denning, said that this was to be found in some contracts. It is virtually found in all. The standard forms of building contracts include this provision. It is in Article 5 of the main standard form, which gives an architect the right to issue the certificate, makes that certificate binding, but gives to the arbitrator—and, again, arbitration is compulsory under the standard forms—the right to review and revise the architect's certificate. So the arbitrator can do what is essential and the courts cannot. That was the ratio decidendi of Crouch's case, and it is of course a decisive element in favour of the adoption of this amendment so that that paradox can be removed.
So may I respectfully urge my noble and learned friend the Lord Chancellor not to seek to deploy his great powers of advocacy in defending this paradoxical position? It can be removed only by the adoption of this amendment. Therefore I hope that, even if he does not say immediately that he is going to accept it, he will at least undertake sympathetically to review it with a view to introducing such a provision on the Report stage.
§ Lord Hailsham of Saint Marylebone
I would just say this in support of what fell from my noble and learned friend Lord Denning. I do not in the least want to stop my noble and learned friend on the Front Bench from reviewing the situation. But if he grants this amendment now, I believe it will be a millstone around his neck because of the immense cost of it. It will take priority, for instance, over the very things which the noble and learned Lord on the Front Bench opposite was advocating in the last amendment.
Secondly, as regards what was said by my noble friend Lord Broxbourne, the argument contained in the circular and the argument advanced by my noble 369 friend Lord Broxbourne is self-defeating. The reasons why the courts decline to reopen an architect's certificate is precisely because the architect's certificate is the certificate of an experienced, professional man, accepted by both parties, and the reason why the arbitrator—if there is an arbitration—is allowed to look at it when the courts will not, is precisely because the arbitrator knows, without being advised by solicitors and counsel on both sides after prolonged legal argument, whether or not the architect's certificate ought to be reopened. One of the types of arbitration—it is not the only type—where parties agree to arbitration is precisely to avoid the prolixity of legal proceedings conducted according to legal procedure.
§ The Lord Chancellor
I heed my noble friend's admonition, which I take to be an admonition to be rather brief on this amendment, and I adopt what has been said by the noble and learned Lord, Lord Denning, and my noble and learned friend Lord Hailsham. So far as concerns Crouch's case, as I understand it the reason why the architect's certificate cannot be altered except by the arbitrator is because the contract so provides. If one has entered into a contract that one will be bound by the certificate of an architect nominated by the person, it seems at least not to be the strongest possible case for legal aid.
In the ordinary case, Fakes' decision would apply and if the interests of justice require it the court would allow proceedings in court to proceed, notwithstanding an arbitration clause, as I understand the law of this country. So this is a very special point.
The noble Lord says that arbitration is inexpensive, quick, and so on. That has been claimed for it more than once. I am not sure whether it is always entirely justified; but it may be almost as good a claim as claiming that legal aid should be available in arbitration. In my submission, if there is a list of priorities for extension of legal aid, arbitration is certainly nowhere near the top of that list. I would strongly submit that this amendment should not be agreed to.
§ Lord Mishcon
My reply equally will be brief. I refer the noble and learned Lord to the decision in Crouch, and to the remarks of the Master of the Rolls. He said that one of the reasons for that decision was to reduce the length of the list of the official referees who habitually deal with construction disputes, and that rather negatives much that has been said in this debate. In the circumstances, I should very much like to consider with care what has been said, especially by the noble Lord, Lord Broxbourne, for whose remarks I was infinitely grateful. I am talking about the remarks in support of the amendment at this stage. In the circumstances, and having regard to the state of the clock at this moment, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
Lord Gifford moved Amendment No. 60:
Page 36, line 27, leave out paragraph (1).
§ The noble Lord said: The purpose of this amendment is to remove from the excepted proceedings in Part II of Schedule 2 proceedings which are in respect of defamation. All the other excepted proceedings seem to have some logical reason why they should be there; but, in my mind, this one has not. The law lays great stress on the protection of a person's reputation. The British people appear also to lay great stress on the protection of a person's reputation because the damages awarded by juries who have to try to quantify in monetary terms the damage caused by a slander or a libel are very high in many cases.
The reason why they place such stress on a person's reputation is the same reason as was given by Cassio to Iago in Shakespeare's Othello when he said:
O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial. My reputation, Iago, my reputation!
§ I have never understood why it is that only the wealthy can get access to justice when it is a question of their reputation. Certainly the reputations of the poor should be regarded with no less weight than the reputations of the wealthy. I have from time to time had to advise that although someone has an arguable case against a great newspaper to take libel proceedings, the cost and the risks in undertaking those proceedings are so great that the client really cannot afford to proceed. In many cases, the newspapers know that and with their unlimited resources take advantage of the poverty of a potential plaintiff who accuses them of libel. It would be a valuable addition to our legal aid law. I beg leave to move.
§ Lord Denning
This matter has been discussed on many occasions in this place. It has been before the Law Commission, Mr. Justice Hirst's Committee, and the like. The argument put forward is that a poor person should be able to bring an action for defamation on legal aid. The answer is that if it were allowed no end of people who had been perhaps defamed—rightly or wrongly—would put the newspapers to great expense. Many cases would take up the time of the courts indefinitely and at great expense. It is much better to leave out defamation from the legal aid system.
§ The Lord Chancellor
As the noble Lord who moved the amendment knows, it has never been law for defamation actions to be included in civil legal aid. The people who set up the scheme were no doubt wise and they did so for wise reasons. As the noble Lord said, it is uniquely difficult to forecast the outcome of defamation proceedings, and that makes it especially difficult to apply the "merits" test normally applied to such proceedings.
Advice not to take an action for defamation is often the appropriate advice to give to someone who is wealthy and apparently has a good case. I have given such advice myself and the persons involved have come, although perhaps not immediately, to see that it was wise advice. Whatever the merits of the 371 argument for the provision, it could not by any means be of high priority. As the noble and learned Lord, Lord Denning, said, it is likely to be an expensive item. I would rather extend legal aid, or some form of assistance, to the social security commissioners' proceedings than to actions for defamation. I hope that the noble Lord will feel able to withdraw the amendment.
§ Lord Gifford
I do not know whether the noble and learned Lord's last observation is an offer in disguise. But, in the hope that it might be, and that we might in the end receive some extension to the legal aid scheme in the interests of the very poorest, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ Schedule 2 agreed to.
§ Schedule 3 agreed to.
The Earl of Dundee moved Amendment No. 61:
Page 39, line 42, at end insert—
§ ("PART I
§ Direct payment of fees and outlays by legally assisted person
§ 1. In section 4(2)(a) (payments out of the Scottish Legal Aid Fund), after the word "due" there shall be inserted the words "out of the Fund".
§ 2. In section 17 (contributions. etc.)—
- (a) in subsection (1), for the words "the Fund" there shall be substituted the words "the expenses incurred by them (or on their behalf)";
- (b) subsections (3) to (8) are repealed;
- (c) at the end there shall be added the following subsections—
§ "(9) Except insofar as regulations made under this section otherwise provide—
- (a) any award of expenses to a legally assisted person; and
- (b) any property (wherever situated) recovered or preserved for him in the proceedings for which he is legally assisted shall be paid initially to the Fund, to be applied towards the expenses incurred by or on behalf of the legally assisted person in those proceedings.
§ (10) Where the solicitor acting for a legally assisted person is employed by the Board for the purposes of Part V of this Act, references in subsection (1) above to "expenses" and in section 33 of this Act to "fees and outlays" include references to sums which would have been payable to that solicitor had he not been so employed.
§ (11) Nothing in subsection (9) above shall prejudice the power of the court to allow any damages or expenses to be set off.".
§ 3. In section 32(a) (restriction on payment etc.), the words ", out of the Fund" are repealed.
4. In section 33 (fees and outlays of solicitors and counsel) in subsection (1), for the words from "out" to the end there shall be substituted the words—
in respect of any fees or outlays properly incurred by him in so acting—
§ PART II")
§ The noble Earl said: Schedule 4 amends the Legal Aid (Scotland) Act 1986. The amendment will alter the arrangements for the collection of contributions 372 from assisted persons in civil cases, so that payment will become a matter for settlement between solicitor and client. This change will reduce the administrative costs for the Scottish Legal Aid Board and place the assisted person in the same position as a private client in relation to the contribution.
§ The amendment will not be commenced until consultations have taken place with the Scottish Legal Aid Board and the Law Society of Scotland as to timing and any related regulations. I beg to move.
The Earl of Selkirk
I should like to make one observation, not on what the amendment does but on the way it does it. If one looks at Clause 41 one sees the words "this Act". In subsection (10) of the amendment at line 3, one sees the words "this Act". Here is one Bill using the words "this Act" and referring to two different Acts. That is probably wrong. I see no reason why the amendment should not specify the Act to which it refers.
I shall add one further point. The amendment is amending a different Act. It should be done by the textual method, which is generally accepted, instead of in this rather scraggy way, which will not make it easy to understand. I should like the noble Earl to think about that point to sec whether it can be corrected. I am sure that in this Bill to refer to "this Act" when it has two different meanings is wrong and careless. I suggest to the noble Earl that he take the amendment back and look at it more carefully.
The Earl of Dundee
I am grateful to my noble friend for his contribution about the drafting, I will take it back, look at it, and without commitment, possibly bring it back on Report.
§ On Question, amendment agreed to.
§ Schedule 4, as amended, agreed to.
§ Remaining schedules agreed to.
§ House resumed: Bill reported with amendments.