HL Deb 31 March 1988 vol 495 cc871-6

11.37 p.m.

The Lord Chancellor rose to move, That the regulations laid before the House on 9th March be approved [20th Report from the Joint Committee.]

The noble and learned Lord said: My Lords, in seeking to move this Motion, it may be for your Lordships' convenience if I speak also to the other three related matters.

The first two Motions relate to legal aid and legal advice and assistance in England and Wales. The other two relate to Scotland. The House will also be aware that there are further sets of Regulations for which an affirmative resolution is not required. Together, all these regulations form a single package aimed at adjusting the legal aid financial limits to take account of inflation, and at giving effect to the necessary amendments arising from changes in social security.

The two Motions for England and Wales deal with the income and capital limits for civil legal aid and advice and assistance. The regulations raise the lower disposable income limit for civil legal aid—that is, the level below which no contribution from income is payable—from £2,325 to £2,400 a year. The proposed increases in the upper income limit—that is, the level above which legal aid is not normally available—is from £5,585 to £5,765 a year. The upper capital limit is similarly increased by the regulations from £4,850 to £5,000.

For legal advice and assistance (known in England and Wales as the Green Form scheme), the regulations raise the upper income limit from £118 to £122 a week. The capital limit—above which advice and assistance is not available—increases from £825 to £850.

The two sets of Scottish Regulations—the Civil Legal Aid (Financial Conditions) (Scotland) Regulations 1988 and the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1988—make the same increases for Scotland. In addition, the Legal Advice and Assistance (Financial Conditions) (No. 2) Regulations 1988, which do not require affirmative resolution, increase the lower income limit for green form advice from £56 to £58 a week and revise the table of contributions. There are identical increases in the lower income limit and a similar revision in the table of contributions relating to Scotland. These are contained in the Advice and Assistance (Financial Conditions) (Scotland) Regulations 1988.

I am also proposing to increase the financial limits for criminal legal aid. The Legal Aid in Criminal Proceedings (General) (Amendment) Regulations 1988 increase from £48 to £50 a week the limit of disposable income above which a person receiving aid in criminal proceedings under Part II of the Legal Aid Act 1974 is required to pay a contribution from income; the regulations also amend the scale of contributions.

All these changes represent an increase of around 3.2 per cent., which matches that underlying the level of the new income-related benefits. I am not proposing any change in the £3,000 lower capital limit for civil and criminal legal aid, or the similar limit above which assistance by way of representation (ABWOR) is not available.

Your Lordships will be aware of the reforms to income-related benefits. On 11th April income support will replace supplementary benefit and there will also be a number of other changes arising from the Social Security Act 1986. Under the new arrangements, recipients of income support and the other income-related benefits will be permitted to have £3,000 capital before an income is assumed to be generated which could affect the level of benefit paid. It seems sensible to continue to use this limit as the threshold for capital contributors for legal aid.

At present, although those on supplementary benefit in practice receive free legal aid, technically their income and capital are still assessed for legal aid purposes. The regulations seek to formalise arrangements which by means of appropriate disregards should always guarantee free civil legal aid to income support claimants, subject of course to the usual test as to the merits of their case. This will not only make administrative sense but will also ensure the achievement of what I hope your Lordships agree is a desirable policy objective.

In addition to creating this "passport" for income support recipients—and that will include their immediate dependants—these regulations also give effect to a series of minor amendments for legal aid which are consequential on the social security changes. In making these amendments I have generally sought to re-create as closely as possible the existing arrangements in relation to the new benefits and their claimants.

There is one slightly different point to which I should like to draw your Lordships' attention, although strictly speaking it is not in a regulation for which I am seeking approval today. Under the scheme for duty solicitors at police stations, commonly known as the 24 hour duty solicitor scheme, there are two tiers of matters in connection with which advice and assistance can be given, each with a different cost limit. The lower tier comprises non-arrestable offences and also all those who are voluntarily assisting the police with their inquiries, however grave the offence involved.

It has been represented to me that this is unfair and that where someone has volunteered to help the police in connection with an arrestable offence they should be able to receive advice in the upper tier, to which a higher, and extendable cost limit applies. If they were subsequently charged with an arrestable offence they would in any case then be eligible for advice within the higher upper tier limit. As some of your Lordships will know, I have accepted these arguments. From 1st April volunteers in connection with arrestable offences will fall within the upper tier of the scheme. The relevant regulation is Regulation 6 of the Legal Advice and Assistance (Amendment) Regulations.

With that one exception I am proposing that all the regulations relating both to the legal aid limits and to the consequences of the social security reforms should come into force on 11th April, the same day on which the new income-related benefits will be introduced. I have also made and placed before the House, under the procedure subject to negative resolution, instruments relating to Northern Ireland which echo the increases in the limits proposed for England and Wales and make comparable consequential amendments arising from the social security changes. These too should come into effect on 11th April.

With that explanation, I beg to move the first Motion standing in my name on the Order Paper.

Moved, That the regulations laid before the House on 9th March be approved [20th Report from the Joint Committee].—(The Lord Chancellor.)

Lord Elwyn-Jones

My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for taking part in the annual Lord Chancellor's quartet in regard to the provision of legal aid. It is not announced to the sound of music or even a fanfare of trumpets—and perhaps the latter would not be abundantly justified in view of the modesty of the increases that are permitted. However, for what we are about to receive we are nevertheless grateful.

I note that this year the Scottish regulations come into force not, as was the case last year, on All Fools' Day but on a later day. I do not know whether that was a deliberate exercise of discretion on the part of the noble and learned Lord, but what is more important is the assurance—and I speak not with a Scottish voice since I am not entitled to claim one—that the regulations for Scotland are the same as for England and Wales.

As I think the noble and learned Lord said, the purpose of legal aid is to put the assisted litigant in the same position as the unassisted litigant as regards accessibility to the courts. I should like to ask the noble and learned Lord whether he thinks that that object is being and will be achieved following these modest improvements. One is speaking of the odd pound here and there, but perhaps that is not unimportant in this matter. Can the noble and learned Lord give an indication as to what percentage of the population is now covered by the legal aid and advice scheme so far as it is possible to make a shot at that estimate?

In this Session we have had substantial debates on the legal aid scheme generally and the restructuring of the whole of the legal aid machinery. I shall resist the temptation to resurrect some of the issues in that field, but I hope that the noble and learned Lord will not forget the expressions of concern that legal aid should not become an inadequate second-class service. This is not the occasion on which to resurrect those anxieties, but I mention them because they are still present in the minds of many who have been taking part in these matters. If it is possible for the noble and learned Lord to say how many of our fellow citizens have benefited in the past year, 1987, from the legal aid provisions, it would be of interest but it may not be easy for him to obtain that information. However, if would be good to know to what extent this notable social service, which I believe it is, is playing its part in the life of our community.

I did not recover the rules regarding criminal legal aid and I do not know whether they are available. Certainly I did not find that they were available to me. Perhaps the noble and learned Lord will say whether they are separately treated by some published regulations. Perhaps he would look into that matter.

We shall have to examine what the noble and learned Lord said about the duty solicitor scheme. So far as I could understand, it seemed to be a beneficial and helpful suggestion.

Generally speaking we welcome the changes. However, we await, I hope with patience, the publication of the various, indeed multitudinous, regulations which fall for publication in the restructing of the legal aid scheme. We hope that they will be published and available fairly soon. That point does not directly arise from today's business but it is a matter of continuing concern to us all. Subject to those observations, we welcome these improvements in the scheme so far as they go.

Lord Meston

My Lords, any adjustment in the financial eligibility for legal aid needs careful scrutiny. The upper financial limits should remind us that legal aid is a service not just for the poor but also for those of moderate means—people who pay taxes and who will expect to make an assessed contribution to the legal aid fund. We should also remember the force of the statement in the report of the Royal Commission on Legal Services under the chairmanship of the noble Lord, Lord Benson, in which it is said that an upper limit of eligibility is inevitably arbitrary and may operate unfairly on persons who fall just above the line. People in that marginal position may be forced to abandon their legal rights, and in personal injury cases in particular it can mean that instead of recovering the damages to which they would be entitled, they become a burden upon the state and upon other taxpayers.

The lesson surely must be that the limits should be regularly up-rated and up-rated properly with reliable information and consistent criteria. If that does not happen, there will be an erratic narrowing of eligibility such as has happened in past years. However, as the noble and learned Lord, Lord Elwyn-Jones, has said, we are in a transitional period. I am conscious of the fact that we may be rearranging the furniture of the legal aid system when the removal van is already taking the whole structure to new premises under new management by the Legal Aid Board. Indeed, I am also reminded by reading the Benson Report again that there was a recommendation that all eligibility limits should be abolished. I suspect that any government would find that hard to grasp, but perhaps it points the Legal Aid Board to a future consideration of how a measure of flexibility can be extended to those marginal cases in which hardship can be created.

The Lord Chancellor

My Lords, I am grateful to both noble Lords who have spoken in connection with this matter. On the points raised by the noble and learned Lord, Lord Elwyn-Jones, I am sure that the Scots would regard his voice as sufficiently close to their own to be highly acceptable to them. In any event, I am certain that they would be glad of his eloquent support in any matter that was of concern to them.

The noble and learned Lord mentioned the criminal regulations. These are not before us today. However, I thought it right to mention them because this change that I have agreed to make to the duty solicitor scheme—which is very important—in my view is highly advantageous and highly proper. People who are assisting the police with their inquiries in relation to arrestable offences should be treated in the same way for this purpose as people who are charged with arrestable offences. I was persuaded that it was right to make that change. I believe that it is highly beneficial. I wish to emphasise it. If I did not explain the position sufficiently clearly the first time, I am sorry, but it is an important change. I wish to make it clear now.

Various estimates have been attempted of the coverage of legal aid. The noble and learned Lord will appreciate that these estimates are at the very best highly dubious. The last estimate the Government published was in the White Paper, where it was estimated that approximately 70 per cent. of households were eligible for legal aid. In the course of the proceedings on the Bill, I expressed considerable reservations about the validity of these figures. I see that others have joined me.

It is not surprising that in this area there is scope for a good deal of variety in the estimates. In order to obtain good figures a great deal more work would be required than I have seen. I should therefore not presume to give any estimate of my own. I understand that, in 1986–87, 253,328 civil legal aid certificates were granted. That gives an impression of the coverage with regard to civil legal aid. On criminal legal aid, I do not have an accurate figure available to me.

The noble Lord, Lord Meston, raised the question of the upper limit. I have always considered that to be very important. If one has a limit the people immediately above it are bound to feel it is a pity that they are just above the limit—that with a few less pounds they would have been all right. However, unless one is going to make the coverage complete, that is bound to be a feature.

As the noble Lord hinted, any government would be likely to find it rather hard to make a complete coverage of all the population by legal aid. Indeed, the purpose clause which your Lordships were kind enough to affirm in the Legal Aid Bill before it passed this House speaks of people of small and moderate means and does not aim at a complete coverage of the population.

These regulations cover the position adequately in the present situation. As the noble Lord, Lord Meston, said, the Bill which was passed here is now in the other place. I hope that a major improvement will result in the administrative efficiency of the legal aid scheme once the Legal Aid Board is in operation.

In the meantime, I am glad of the support that your Lordships have given for this up-rating.

On Question, Motion agreed to.