§ 3 p.m.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, I beg to move that this Bill be now read a second time. From the list of speakers who have put down their names to speak, it is obvious that we shall have an extremely interesting discussion. I wish in particular to say how much we look forward to the maiden speech of the noble Lord, Lord Byron.
Before I discuss the general purposes of the Bill, I think that it might be helpful to your Lordships if I took some time to explain why I am introducing for the third year in succession a major piece of legislation affecting legal services. This Bill is undoubtedly the most diverse, and perhaps the most substantial, of the three. I would, therefore, like to take this opportunity to explain how the Bill relates to the other work the Government are undertaking to encourage the development of the courts and the provision of legal services.
Our keynote is to improve access to justice for all who need it. There are three elements to this: a just and efficient court system; sufficient legal services of the right kinds to meet clients' needs both in relation to the courts and more generally; and an efficient and effective scheme to make public funds available to those who need legal services and cannot meet the costs themselves.
The last of these was tackled first. I have been puzzled that some critics of the present proposals have complained that they are not directed at the question of legal aid. It was made perfectly clear from the outset, when I published the Green Papers at the beginning of this year, that my present proposals were not intended to do so. They are of course nevertheless relevant to legal aid. By seeking greater choice in the provision of legal services, so that clients can get more precisely what they want from the legal profession, and by seeking to make the workings of the profession itself more efficient, I hope to reduce the occasions when the client, whether he is privately or publicly funded, has to pay for a mismatch of services to his needs or for unnecessary extras. More obviously, I am not now seeking a major overhaul of the legal aid legislation, because we have just completed one.
The Legal Aid Act 1988 made a decisive change in the administration of legal aid, by transferring its 123 management from the Law Society to the new Legal Aid Board. The board itself brings together people with skills and experience in business, management, the law and consumer affairs. That synthesis, and the enthusiasm of the board's members, have opened the way for a thorough reassessment of the systems under which legal aid is managed. I look with confidence to the board to produce the quicker, better service which the changes it has made now promise.
Of course, better management of the legal aid system will deliver only one part of the general improvement in legal aid for which I am looking. Your Lordships will know that I have instituted a review of the financial conditions for legal aid which will examine how far it is practicable to develop a more flexible system for deciding eligibility in which the individual's need can be assessed by looking both at his means and at the likely cost of proceedings. Comparisons are sometimes made with 1979. The most accurate and testing comparison, which does not use assumptions of any sort, is that in 1979 to 1980 there were 190,677 legal aid certificates issued. In 1988 to 1989 that figure rose to 247,117. And we estimate that the figure in 1989 to 1990 will be about 259,000. Over the same period, expenditure on legal aid as a whole increased some fivefold.
I have announced changes in the legal aid eligibility conditions of particular benefit to children and pensioners who need to live on their savings, and in eligibility in personal injury cases. If, as I suspect is possible, the argument that I am neglecting legal aid is brought forward again this afternoon, I would, therefore, ask your Lordships to consider it in the light of what has been achieved in this area in the past two years.
I turn now to the court system itself. What I have sought here is to enable fresh and better ways of administering justice to evolve at every level. The first step towards this was the Children Act 1989 which completed its passage only a few weeks ago. The Act, which will be amended by this Bill in some relatively small but useful respects, aims to create a single flexible jurisdiction within which all cases involving children can easily find the appropriate level of court. It may also provide a model for further development of family law generally.
The same basic approach underlies the first part of the Courts and Legal Services Bill. The proposals in this part of the Bill began with the major initiative of the Civil Justice Review, which started in 1985 and was completed last June. Our civil courts have the highest reputation for impartiality. They also have a proven track record for dealing effectively with cases of the greatest complexity. The high international standing of for example the Queen's Bench Commercial Court is proof of that. But impartiality and quality, by themselves, are not enough. There is also a need to ensure that ordinary people can use the courts to get decisions to resolve disputes on everyday matters.
The Civil Justice Review examined the ways in which civil proceedings in England and Wales could be made simpler and cheaper. Many of its proposals 124 can and will be implemented through better administration, or by secondary legislation using powers that are already in place. The review's central finding, however, was that there are too many relatively minor cases in the High Court. The results are that simple cases in that forum take too long and cost too much. Even more seriously, they reduce the time and resources available for the most complicated and sensitive issues.
The aim of the legislation I now propose is that the High Court will eventually be reserved only for specialist cases, including judicial review, and general cases of unusual substance, importance or difficulty. The measures in the Bill therefore seek to ensure that in future all civil cases can be dealt with at an appropriate level. In particular, the Bill will enable general cases to be redistributed between the High Court and the county courts according to their substance, importance and complexity. The remedies available in the county courts, and the cost regime, will be brought more closely into line with those in the High Court in order to make transfers easier.
I am well aware that concern has been expressed about the capacity of the county courts to cope with an influx of work. There are one or two points I should like to make on this. First, I must pay tribute to the hard work and dedication of both the judiciary and court staff, who have displayed unstinting energy in dealing with an ever-increasing volume of work. I am at present seeking to augment their efforts with a number of initiatives to enable a better managed and directed use of resources. These include the introduction of continuous trial centres, a summons production centre, and the curtailment of the courts' role in handling suitors' cash. These measures will give the county courts a considerable measure of relief.
Our plan is to introduce the changes recommended by the Civil Justice Review, most of which, as I have said, do not need primary legislation, at a pace that the courts and users of the courts can absorb. A number of moves have been made already. For example, the senior judiciary have taken an important initiative by issuing practice directions encouraging the transfer to the county courts of many cases which would otherwise have proceeded in the High Court. The result is that the county courts are already hearing a number of the cases which will come to them by a more straightforward route under the arrangements I am proposing.
I have also taken steps to increase the resources available to the courts. The Chancellor of the Exchequer's recent Autumn Statement announced that my department would be receiving an additional £70 million in the next financial year. Not all of that can go to the court service, of course, but I expect to be able to increase the number of staff in the court service during 1990–1991 by around 350 over existing levels of staff in post.
Beyond that, I accept that additional staff will be needed to deal with the Civil Justice Review improvements and the related initiatives which fall outside this Bill, including preparing for the implementation of the Children Act. Initially, that could involve a further increase in the number of 125 court staff amounting to perhaps 100, although some of that increase in work will in due course be offset by the other initiatives I have mentioned.
I announced in April that the Government would accept the Civil Justice Review's recommendation relating to lay representation in the county courts. The recommendation is in many ways a suitable preliminary to the provisions of the Bill relating to legal services, since it creates an opportunity for a natural development in the existing role of advice agencies which assist those who have particular difficulties and do not need a solicitor but who would have difficulty in making and presenting their own cases without assistance.
The part of the Bill which deals with legal services does not attempt to create a ready-made and immutable template for the way in which legal services are to be provided. Instead, I am seeking to create a framework which will foster evolution in legal services, allowing them to be more varied and better adapted to clients' needs. That is in no way to denigrate the past achievements of our judges and lawyers. Their integrity and independence is central to the maintenance of our liberties under the Crown; and we must all seek to keep that major fact clearly in sight.
That has to be seen, however, against the background of the changes and developments in the organisation of economic activity and business which have taken place in the 10 years since the last thoroughgoing consideration of the profession by the Royal Commission chaired by the noble Lord, Lord Benson. Those changes have affected many aspects of the work and organisation of both branches of the legal profession. The Benson Report itself greatly advanced public discussion of what the profession did. Certainly it informed the deliberations of the Bar and Law Society joint committee, chaired by Lady Marre, and much other work undertaken by the National Consumer Council, the Director General of Fair Trading, and many others.
The last 10 years have accordingly seen many changes and departures from the arguments and recommendations contained in the Benson Report. On the one hand, for example, the Bar has moved away from the recommendation that fee-sharing should not be permitted between banisters on the grounds that it was tantamount to partnership. I believe that that measure has been found particularly valuable in enabling the Bar to develop areas of work where funding is at a premium. On the other hand, Parliament has changed its own general acceptance of the Benson recommendations as circumstances have developed. The most important example here, of course, was the decision in another place to give a Second Reading to Mr. Austin Mitchell's Private Member's Bill to remove restrictions on conveyancing. That led to the establishment of the Farrand Committee on conveyancing, to the establishment of the Council for Licensed Conveyancers in the Administration of Justice Act 1985, and to Parliament's decision to create a framework by which banks and building societies could be permitted to undertake conveyancing work in the Building Societies Act 1986.
126 All those considerations prompted me to take a fresh look at the way in which legal services are provided in England and Wales. The White Paper published in July proposed a new framework to operate under statutory objectives with the intention, as I have said, of stimulating development of the legal profession's standards of education and training and its rules of conduct, subject always to the interests of the proper and efficient administration of justice. The Bill sets out to implement those proposals. The key aims are to ensure that the voice of the user of legal services can be heard when questions of the provision of legal services are decided; to make sure that those who take decisions are answerable for them; and that they take them with the benefit of full and considered advice. Equally, the proposals include a vital role for the independent judiciary in determining the qualifications and conduct of those who may conduct business before their courts; and they preserve the full independence of the legal profession itself.
I do not wish to take up the time of the House in discussing the detailed content of that part of the Bill, but the statutory objectives are central to the efficient working of the framework. I should therefore like to describe them at a little greater length. The formulation of the relevant clauses is —as has been remarked —rather different from that set out in the White Paper. That is not because the policy set out in Chapter 2 of the White Paper has changed in any way. It is partly because the language of statute is necessarily different from that of White Papers, but partly because we have now had to separate out which elements of the objectives relate to which areas of legal services, and on whom the duties they create should fall.
There are three elements. The first, the general objective of the whole part, makes it clear that in this legislation we are seeking to advance the development of legal services in England and Wales, particularly in the areas where there are legal restrictions on who can undertake to provide services. Those four areas are advocacy, litigation, conveyancing and probate. The aim is to make sure that in the future there are new ways of providing those services, and a wider choice of people providing them.
In two of the areas —advocacy and the conduct of litigation —the restrictions are particularly marked in view of their special importance. In those areas, the need for professional self-regulation, the need to promote competition, and the wishes of the client —all of which have an important part to play in governing the ways in which legal services are provided —must be subject to the needs of the proper and efficient administration of justice in the court of proceedings involved. There is there fore a special need for a clear balance to guide future developments.
Accordingly, in those areas the statutory objective is subject to a general principle that the development of legal services by granting fresh rights of audience or to conduct litigation should be determined only by reference to three tests. Those are whether persons granted such rights are appropriately qualified, in 127 terms of education and training; whether they are subject to rules of a professional or other body whose rules of conduct—including, of course, rules of practice —make appropriate provision for the interests of the administration of justice in relation to the kind of work involved; and whether the body in question can be expected to enforce its rules effectively.
There is an important third element. That is the speed with which the new regulatory framework I am proposing can give effect to attempts by the professional bodies to adapt better to the needs of clients and the courts. I hope that the framework I propose will stimulate development as well as regulate it, although no one wishes to see those important issues treated badly because of undue haste. Clause 15 of the Bill therefore imposes on the elements of the framework —the Lord Chancellor, the four senior judges named in the Bill, the advisory committee and the Director General of Fair Trading —a duty to exercise their functions as soon as is reasonably practicable, and consistently with their other duties under the Bill, and in particular consistently with the statutory objective and the overriding general principle.
I mentioned the present statutory restrictions in four main areas of legal work: rights of audience; the right to conduct litigation; conveyancing; and probate. The first two have an intimate relationship with the working of the courts and belong together. Each of the others stands alone. The Bill accordingly proposes three separate ways to encourage more choice in their provision.
The first new mechanism concerns rights of audience and the right to conduct litigation. The existing arrangements under statute and common law for the granting of those rights will be abolished. Instead, a new framework will authorise professional bodies to grant those rights to their members. Barristers' and solicitors' existing rights will be preserved within that framework, with the Bar being specifically authorised by the statute to grant rights of audience to barristers, and the Law Society authorised to grant rights of audience and the right to conduct litigation.
Applications from those bodies to extend rights, or from new bodies to grant them, will be considered by the Lord Chancellor and the four senior judges named in the statute. That will be done on the basis of advice from a new body, the Advisory Committee on Legal Education and Conduct, and from the Director General of Fair Trading, and such consideration will include the question whether such bodies have rules of conduct, which will include rules of professional practice, appropriate in the interests of the proper and efficient administration of justice.
The second set of arrangements relates to conveyancing services. The arrangements are not quite as they were described in the White Paper, so I shall explain them in a little detail.
In order to disturb the existing position as little as possible, the White Paper proposed in essence that the work of regulating conveyancing should be 128 carried out by the existing regulatory frameworks for institutions that wanted to undertake conveyancing work. Where there was no regulatory mechanism in place, the relevant profession would need to set up a satisfactory one as a precondition of authorisation. Closer scrutiny of that suggestion has led me to decide that it would be simpler, more effective and less confusing for clients to set up a single regulatory body to deal with all those who wish to do conveyancing work under the new arrangements.
The Bill accordingly provides for the creation of the Authorised Conveyancing Practitioners Board to be responsible for authorising competent practitioners to carry out conveyancing work and for overseeing their work. The board will be required to set up and run an ombudsman scheme to investigate individual complaints about authorised practitioners, but will itself take the decision whether individual practitioners should start or continue to practise. New conveyancing appeal tribunals will be set up to hear appeals against disciplinary decisions of the board. The board will be independent of government. I intend that it should as soon as possible be self-financing, but provision is made for grants to cover the period during which the new system is being put into place.
The third system of arrangements —that for probate —is also different in detail from the White Paper proposals in the interests of greater client protection. The White Paper proposed that all trust corporations should be authorised immediately to undertake probate work and that other bodies should be enabled to seek to do so. On further thought, I have decided that this casts the net a little too widely. The Bill therefore proposes that banks, building societies and insurance companies should be able to prepare for reward, and to lodge, papers for a grant of probate or letters of administration, provided they belong to a suitable complaints handling scheme. The Bill enables the Lord Chancellor by order to extend that right to other suitable bodies on the advice of the advisory committee and after consultation with the president of the Family Division.
Proposals to widen the provision of legal services serve only to emphasise the central importance of maintaining and improving the professional quality of those services. The Bill therefore provides for the appointment of a legal services ombudsman with jurisdiction over all relevant legal practitioners. The proposal builds on the role already established by successive lay observers, but gives the ombudsman significantly wider powers. The most important of these is the power to recommend that where a complaint against a lawyer is justified, or where it has been badly handled by his professional body, the aggrieved client should be paid compensation, where appropriate.
Many of your Lordships will know about the announcement made by the Council of the Law Society on 18th December, saying that it would seek in this Bill an extension of its present powers to deal with complaints against solicitors. I can only welcome that announcement in the warmest terms. Urgent discussions are proceeding as to how the society's proposals can be fitted into the existing 129 legislation. I expect that, as a result, the society will ask me to introduce a small number of amendments to the Solicitors Act. I would very much hope to be able to do so during the Committee stage of this Bill in this House.
Part II of the Bill also removes the statutory restriction which prevents solicitors entering into partnership with any other practitioner. Henceforward, that will be entirely a matter for the professional bodies. The Law Society has recently completed a consultation exercise on the new regulatory mechanisms which would be required if solicitors were to form partnerships with lawyers in other jurisdictions, particularly within the European Community. New arrangements would have to be incorporated into the Solicitors Act. I therefore expect to introduce amendments in that area too, reinforcing provisions already in the Bill. I shall of course also listen to the debates attentively and seek to make any improvements to the Bill, in any of its parts, which these debates suggest should be made.
The Bill also amends the qualifications for judicial and certain other appointments, in the main to make qualification depend on the possession of relevant rights of audience under the new arrangements. It amends the judicial pensions legislation, essentially to put widowers in the same position as widows for pension puposes. There are amendments to enable the Law Society to regulate the solicitors' profession more effectively. There are proposals for improving the arrangements for arbitration, and a series of other changes including giving immunity from civil proceedings to magistrates and their clerks in certain circumstances; allowing lawyers to charge fees in some circumstances on a no-win, no-fee basis; and prohibiting the making of loans in connection with house purchase conditional on taking other services.
I believe that the measures contained in the Bill will make an essential contribution to improving both the court system and the development of legal services both within and outside those courts. I beg to move. I commend the Bill to your Lordships.
§ Moved, That the Bill be now read a second time. —(The Lord Chancellor.)
§ 3.26 p.m.
§ Lord Mishcon
My Lords, I am deeply conscious, as all your Lordships will be, that had providence not otherwise decreed a figure very much loved and respected in all quarters of the House would at this juncture be addressing us on this important Bill. It is impossible, for so many reasons, to be an adequate substitute for the late Lord Elwyn-Jones, and I can only hope that, with their usual kindness, noble Lords will bear with me.
We have indeed a courageous Lord Chancellor. He has ridden a course with calm dignity through a controversial Green Paper, through to a controversial White Paper, and has come through, slighty battered but completely unbowed, to introduce with his usual lucidity and eloquence the Second Reading of the Bill this afternoon.
The idea behind this reforming measure is one with which all of us must sympathise. The noble and learned Lord is endeavouring to put our legal profession and our courts and the legal services given 130 to the citizen into the next century by seeing that they have more efficiency and accessibility and that they are more economical and expeditious. From these Benches we support every one of those endeavours. That we have doubts is a normal attribute of an opposition, but our doubts are centred quite frankly and quite sincerely on the following issues.
First, because we want the reforming measures to succeed, we have our very definite doubts about whether they are sufficiently underpinned in many respects. We need some assurances in regard to certain sections of the Bill that the public will be properly protected. We must say —and we say it with dismay —that the Bill brings us very little, if at all, nearer to the goal, which I am sure the noble and leaned Lord himself has, of ensuring that equal justice is available for all, regardless of means.
As the noble and learned Lord said, Part I of the Bill implements the recommendations of the Civil Justice Review. As your Lordships know that review had four aims: first, to reduce the delay in the handling of cases; secondly, to simplify the handling of small cases —and I say immediately in parenthesis that the Bill seems to accomplish that end very efficiently; thirdly, to ensure the best use of courts' resources; and fourthly, to reduce the cost of litigation. Those aims are reflected in the main by provisions that enable the county courts to have a far larger jurisdiction and to ensure that there is the capacity to transfer from the High Court to the county court those cases which could suitably be dealt with there but which for one reason or another have commenced in the High Court.
I should like if I may most respectfully to issue one warning. When reading the provisions which relate to transfer, I could not help but feel that there was a great emphasis on convenience of administration without any very clear provision that much of that must be done for the parties' convenience. One hopes that there will be very clear procedures by which the parties will be heard before transfers are made or indeed, if they are made, as to where they are made. Clauses 1 and 2 look wonderful as reforming measures until, as I said before, one looks at the possibility of carrying them out in the practical circumstances with which we as practitioners in the law know we are surrounded at this moment.
I listened very carefully to the noble and learned Lord when he spoke of his aim to increase the numbers of personnel employed in the county courts. I believe that the number by which the personnel is to be increased is 300-odd —if I caught the figure accurately it was 350 —and that some of the £70 million allocated in the Autumn Statement will go to improve the working of the county courts. But the fact of the matter is that this is just impracticable unless there are to be very different salary scales and (I say this with due respect) unless there is to be a very different type of employee at the county court generally. With a due sense of responsiblity and not without having information to support my remarks, I must tell your Lordships that at this moment the county courts just do not attract or retain suitably qualified staff.
131 I get no pleasure at all from saying that a recent survey has shown that the Lord Chancellor's Department has a higher rate of resignations than any other government department. I assure your Lordships that it has nothing to do with the personality of the noble and learned Lord the Lord Chancellor. Indeed, if more members of the staff could meet him, I am perfectly sure that there would be fewer resignations. Nonetheless, that is the position.
With regard to the financial situation within the county courts, it is again with a sense of responsibility that I have to use the word "ludicrous". Are your Lordships aware that the London county courts have been instructed to cancel all window cleaning contracts? Are your Lordships aware that some court officials in the county courts, because of the critical financial situation, have been told not to use telephones during the morning peak hours? I do not believe that I have to give many more examples, but lastly, as I said on a previous occasion when dealing with this matter, Wandsworth County Court is running short of postage money and will shortly have to say that it can only reply to correspondents if pre-paid envelopes are sent to the court. That is literally true.
I have to make that statement with every gravity because it is so easy for legislators to walk happily away from Parliament saying, "We have now reformed matters. We have now done great things". But other people have to carry out the enactments of Parliament and the fact of the matter is that at this moment many county courts are on the verge of crisis and there are terrible delays as a result.
The noble and learned Lord mentioned, quite correctly and accurately as one would expect, that the county courts in any event and quite apart from the provisions of this Bill will have the added and precious burden (as many of us feel, not least the noble and learned Lord) of the Children Act on its implementation. That implementation is as near as autumn 1991.
I shall give only a few examples, but they are recent ones, of what is happening with regard to delays in the county courts, which will now have extra jurisdiction under this Bill. In Birmingham if one wants to make an application for a 10-minute hearing at this moment the average delay is five months. Again in Birmingham when a summons is issued and papers are sent in there is a delay of two months before that summons is received. In Bromley it takes 11 weeks for a request for directions for trial. Again in Bromley it is four months before a divorce petition can be issued, with much possibly involved in regard to family welfare. Again in Bromley it is six months before a taxation of costs can take place. I only offer the next example because I mentioned the Children Act. In Swindon it takes more than six weeks for wardship summons interim custody; a wardship order for hearing to trace a ward has taken seven weeks. Lastly, in the Swindon County Court it has taken six weeks, to get an injunction heard to protect a woman from a violent former boyfriend.
It is upon that structure that this Bill depends for many of its reforming measures. All I ask —and 132 I hope that it is not a destructive, non-positive contribution to this important debate — is for an assurance that before Part I is implemented suitable personnel are put in place and indeed that all the necessary financing will be available.
I move on to a very important provision to which the noble and learned Lord devoted a substantial portion of his remarks; namely, the provision that enables qualified solicitors the right of audience to all courts and as candidates for all judicial appointments. I say that with a sense of responsiblity as a proud member of the solicitors' profession. I assure your Lordships that members of my profession regard the privilege as one which must be earned by their conduct as advocates if the Bill becomes an Act. I believe that your Lordships will find that we shall not be lacking in service to the nation. We on these Benches do not oppose those provisions.
I now draw your Lordships' attention to the principle on which permission will be granted to act as advocates. It is contained in Clause 14. It is important that the provisions remain as they are, or almost so, without being altered in a way which will defeat their proper object; namely, that provided there is the ability, the experience and the quality, advocacy will be allowed in all our courts.
I say with the deepest of respect that I was disturbed by the attitude of some noble Lords who are revered in this House and in the nation as eminent judges. I hope that as a result of this debate, or of events afterwards, no one will gain the impression that our judges, of all people, are desirous of sabotaging the provisions of the Bill in that regard.
I know that the noble and learned Lord the Master of the Rolls will forgive me and acquit me of any lack of respect if I say that it was with dismay that I and others read his speech of 30th September. He knows that I should not quote his words unless he was due to address the House later in the debate and, therefore, would have an opportunity of dealing with my remarks. He said:The interests of justice may demand special requirements such as, for example, that the preparation and presentation of the case be in separate and independent hands".That is not the situation which now exists in our county courts or our magistrates' courts where solicitors are advocates. I know of no other country in the world that has such a rule. Sir William Goodhart, QC, said:It seems to me to be based on the proposition that the more you know about a case the less suitable you are to present it".It is with pride that I identify myself with those remarks.
I should like to make two points in relation to this part of the Bill. First, the client —that is, the customer —must have the right to choose the type of advocate that he wishes to have. I ally to that the fact that the legally aided client must also have that right. We want no second-class litigants in our land.
Secondly, the advisory committee, which has such an important part to play, must, as the noble and learned Lord indicated, be completely independent of the Executive. That was his aim, and he has achieved it in the sense that, as I understand the 133 position, the expenses of the members will be paid out of the Consolidated Fund. Will the secretariat also be paid out of the Consolidated Fund? If that is not the present intention, may I respectfully suggest that it should be? The secretariat will play a most important part in the work of the advisory board.
I turn briefly to conveyancing. Obviously, I appreciate that the safeguards of the public, which must exist with regard to the provisions of the Bill, cannot usefully be included in the Bill. They must form part of regulations: I accept that. I merely ask the noble and learned Lord for an assurance that in subsequent regulations there will be no watering down of the safeguards set out in the White Paper. In my view and that of my colleagues, those safeguards are most important.
I turn to the last subject upon which I wish to comment. It is legal aid and eligibility. The noble and learned Lord was right in anticipating that criticism might be made. Legal aid is an important part of the principle of equality before the law. The noble and learned Lord said that a valuable statistic was the number of legal aid certificates that had been granted. I respectfully agree that it is important. However, a much more important statistic is the level of eligibility. I must make the comparison in spite of the fact that the noble and learned Lord suggested that I should not. In making his announcement about the three-year review —and three years is a long time —he held a press conference at which he was asked about eligibility. He said that as against the 1987 White Paper figure of 70 per cent. of the population being covered by legal aid the figure is now around 56 per cent. That represents a fall of 14 per cent. in two years.
In October last the senior lecturer at the London School of Economics department of statistical and mathematical sciences reported on his analysis of government statistics. It showed that, compared with 1979, 14 million people in 5.5 million households no longer qualify for civil legal aid and legal advice and assistance. Of that figure 2.5 million have ceased to be eligible during the past two years. That means that 14 million to 15 million people, for whom legal aid was available 10 years ago, are no longer eligible. I ask the noble and learned Lord: are those figures right or are they wrong? If they are right, or nearly right, could we not have side by side with the Bill —if it has to be by regulation and not incorporated in the Bill —an increase in eligibility so that the inflation over 10 years is fully taken into account, especially with regard to capital possessions quite apart from income?
Can we consider the tribunals before which legal aid representation and help are not available? Can we try to usher in an era not only of more convenient court administration but of greater justice for all? If we can achieve that aim in the Bill as it passes through your Lordships' House we shall have done well.
§ 3.51 p.m.
§ Lord Hutchinson of Lullington
My Lords, there is much in this Bill of which I approve. But having regard to the number of speakers one must limit 134 oneself to only one aspect of a Bill of this complexity. I intend to concentrate on Part II which I suggest is the nucleus of the Bill: the supply of legal services. I wish to restrict my speech to the effect of that part of the Bill on the criminal courts where the underprivileged mostly appear and where civil liberties are most in issue —an area not referred to by the noble and learned Lord in his opening observations. The test must be this. Will the Bill provide the ordinary person seeking legal advice or representation with greater informed choice, greater access, less cost, less delay, higher standards of competence and conduct and more vigorous support of his civil rights?
As promised by the noble and learned Lord the Lord Chancellor in his sustained and confrontational approach hitherto, the Bill faithfully applies to the institutions of the law the Government's philosophy of the market-place. I fear that yet again the result will be predictable. Only the big battalions—the top of the pile, the big firms, the top earners, the well-heeled clients —will be the beneficiaries. When one adds the tight restrictions of the new legal aid Act, the answer to my earlier questions I fear must be no. I do not think that anyone in this House who knows me could describe me as particularly establishment-friendly, or for that matter judge-friendly. But I have fought this Government on a number of civil liberty issues, often privileged to be alongside Lord Elwyn-Jones, whose absence we all so deeply deplore and whose words on our debate on 7th April should surely be remembered today. He said:The authoritarian regimes' first victims were the independence of the judiciary and … of the legal profession". —[Official Report, 7/4/89; col. 1313.]As drafted, I suggest that the Bill will do injury to the civil liberties of ordinary citizens following on other Bills that have done just that and preceding, alas, more to come: the abolition of the right of silence and the further limitation of jury trials. It falls within the pattern.
The noble and learned Lord has convinced many that Part II of the Bill triumphantly secures the abolition of closed shops, restrictive practices and monopoly, whereas in truth, as the noble and learned Lord, Lord McCluskey, so clearly showed in the equivalent plans for Scotland —and where is the Scottish Bill?—it alters the structure of the legal profession and downgrades the criminal courts. Those are two areas of which the noble and learned Lord would be the first to agree he has had no experience.
The noble Baroness, Lady Oppenheim-Barnes, sadly is not in her place. In our debate on 7th April she stated that the present structure has,set British justice at the pinnacle of world legal practice". —[Official Report, 7/4/89; col. 1329.]I wish to assure her, representing as she does the consumer, that any amendments emanating from the Bar will be directed, I am sure, to the terms on which those now given the exclusive privilege of rights of audience should in the public interest exercise their new monopoly.
Today the barrister advocate is a whole-time independent sole practitioner acting as a consultant 135 on referral by another professional, as in medicine. He is available to everyone through 70,000 solicitors across the country. He owes no loyalty to anyone —to firm, partners or any other client. He has minimum overheads, handles no money and is not an agent for his client. He must take cases however unpopular or unpleasant they may be. This independence, availability and expertise, wedded to standards learnt not from codes but in the Inns of Court, the circuits and the courts, have been (and I say this from my 40 years' experience) the absolute essential protection of the citizen, whoever he may be, against abuse of executive power or that of the police. In the criminal courts that now all goes. Can we secure that protection in this Bill? It is a vital question.
The solicitor's role is different. It is an honourable role. He picks and chooses his clients. He builds up the portfolio of clients. He very properly wishes to keep them. He owes loyalty to them, to partners, to his firm and to his staff. He is the general practitioner, with the high overheads involving high charges. Of that profession no one is more loved than the noble Lord, Lord Mishcon. The Bill in due course will achieve the Government's aim to clear the Crown Courts of the Bar, reflecting, I am afraid, their dislike of jury trials. I can only say that the consumer will suffer.
The defendant will now seek a solicitor or an accountant to accept his unpopular case. The big firms, busy recruiting top barristers, will turn him away. He will not find the High Street solicitor. He will have to go to the amalgamated firm that does crime near the local courts. If accepted he will be told, "Our Mr. X will be prepared to do your case. Bring your witnesses along and he will steer them through their evidence in court. We know the local police. We can speak to our colleague about your plea, or of course we can speak to our colleague in the local Crown Prosecution Service".
Prosecutions will be conducted by the state prosecution service. For the first time civil servants will be conducting prosecutions with a strong incentive to obtain a conviction, or of course they will be conducted by the in-house solicitor from the Customs and Excise, the DTI, the Inland Revenue or whoever.
The defendant will not be told that a barrister could do the work at half the cost; nor will he be told what is the expertise of Mr. X, the in-house advocate, or what will happen when two of Mr. X's cases come on at the same time; and nor will he be told of the expense of the necessary back-up from the firm.
The American Chief Justice implored the Royal Commission not to go over to the United States system of the High Street trial lawyer. Professionalism, he said, moves inevitably to commercialism, principle to profit. That is what has happened in the United States and that is what happens when market forces bite, unless of course we can improve this Bill.
Does the Bill give the consumer any of the vital protections which the present delicate structure gives him? That protection has never been criticised in 136 Green or White Paper at any stage. The convoluted and Stygian form of Clause 14 and Schedule 4 leaves my mind unresolved. Therefore, I wish to ask the noble and learned Lord some questions. If he will be kind enough to answer them at the end of this debate, it would help us to decide whether or not amendments should be tabled.
First, do the Government support the continuing existence of a strong and independent Bar? Secondly, can the "designated judge" raise any of the following matters of principle in the public interest on behalf of the consumer under Schedule 4? In stating each principle, I quote the actual words of the noble and learned Lord the Lord Chancellor. The reference to each one can be found in the Bar's blue book Quality of Justice, and most of what he said was in giving evidence to the Scottish Royal Commission.
First, he said that a Supreme Court case merits an independent person to review what a solicitor has found out. Furthermore, the Bar accepts an obligation to take any case from any client, and this is a constitutional guarantee. Secondly, he said:The measure of independence which is enjoyed by the advocate as compared with the solicitor is a valuable safeguard … especially … in the Supreme Courts".Thirdly, he said:Advocates had to be independent and could not be employed nor become partners in a practice".Fourthly, he said:The client wants the best advocacy going … the solicitor who fancies himself as an advocate … may not be the best person to judge his own skills … It is a crucially important decision for the client".Those are crucial principles covering choice, availability, the Crown Prosecution Service, self-selection and independence. Those were vital protections for the consumer in the view of the noble and learned Lord the Lord Chancellor before he set out on the road to the Woolsack. The Law Society and the Consumer Council say that all such matters cannot be raised. I ask whether they are right.
I end by raising two other matters. First, in the White Paper the statutory objective clearly stated that any restriction on choice or access was to be measured by whether it was necessary in the interests of justice. Since then a weasel has got loose in the drafting office. The public interest has become lost on the way, jettisoned from the statutory objective now in Clause 14. That is an astonishing omission and I should like to ask the reason for that.
Secondly, in the White Paper the judges were to play "a central role". The weasel has been at it again. Following as best one can the tortuous interlocking procedures of Schedule 4 described as "the mechanism" by the noble and learned Lord, when one lights upon it it appears that the judge's role is now peripheral and neutered. This Bill fundamentally alters the institutions over which the judges preside and yet nowhere in the 35 clauses of Part II of this Bill do the great judicial offices —the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor—appear, and yet on my calculation the Lord Chancellor is mentioned 67 times.
At page 72, Part I, Schedule 4, paragraph 5 we find a clue —the designated judges. Under Part II 137 the body which will now nominate its members as advocates must go first to the Lord Chancellor's Advisory Committee. That committee comprises 15 of his appointees including two barristers who do not even have to be practising barristers, with a majority of eight laymen. That quango is to advise the Bar on its ethical standards and on the practical training of its advocates. Indeed, if it alters its rules it must accept the advice of the quango.
We are told that the committee represents the customers' interests. In the Crown Court that would be the CPS and the defendant, their interests being diametrically opposed and in many cases diametrically opposed to the true interests of justice—market forces in the administration of the law. Perhaps I may say that it would be difficult further to denigrate a great profession.
Then the rules must go to the Lord Chancellor, then to the Director General of Fair Trading and then back to the Lord Chancellor. At that stage of the bureaucratic maze the Lord Chancellor approves those regulations. It is then and only then, when all parties have made their decisions, that on page 72 the "designated judges" come into the picture. It is noticeable, as your Lordships can see, that in the Bill, whereas we have the Lord Chancellor and the Director General of Fair Trading with capital letters, "designated judges" make their first appearance in small print. Who are they? Only by tracking back to the interpretation clause, Clause 81 on page 60, is the mystery of the designated judges resolved. Sandwiched between the definition of a court and the definition of a director we find at last the great offices of Lord Chief Justice and the Master of the Rolls.
Suffice it to say that, should they dare to disagree with the noble and learned Lord acting as a Minister of Justice and a politician, they can for the first time in the long legal history of this country be sued in their own courts for personal damages. They can be sued presumably by any little upstart solicitor, accountant, patent agent or what you will who may feel aggrieved. That is the Bill which is before this House today.
As drafted the Bill will, I fear, strip the small man of the protection that has been so elaborately given by the delicate structure of the present institutions. He will now be left to the tender grasping mercies of the market, open to the abuses against which our American friends have repeatedly warned us. I am sad beyond measure to see my profession banished from the Crown Courts where it has upheld standards so easily compromised when people fight for their liberty.
The poor liberated consumer will now be represented by a cosy lot of generalist advocates or para-legals working by the book on a strictly commercial basis and subject to a rigidly cost-cutting system of legal aid. If anything can be done during the passage of this Bill to give him or her a better deal, I shall support any such amendment. However, I fear that Part II of this Bill—subtly drafted, authoritarian, somewhat mean and certainly obscure —will be extremely difficult to amend.