HL Deb 20 March 1989 vol 505 cc530-40

7 p.m.

The Lord Chancellor (Lord Mackay of Clashfern) rose to move, That the draft regulations laid before the House on 6th March be approved. [12th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move the first Motion standing in my name on the Order Paper. I believe that it may be convenient to speak to all three together and then to move them formally.

Lord Mishcon

My Lords, perhaps I may say to the noble and learned Lord that it will be of the greatest assistance if he speaks to all three but I trust that each will be put separately.

The Lord Chancellor

My Lords, that is my intention. There are three Motions standing in my name on the Order Paper and, with the permission of the House, I shall deal with them together but put them separately. The draft regulations for which I am seeking approval today are part of a package designed to implement the Legal Aid Act 1988 from 1st April. They relate to the scope of legal aid and advice and assistance, and to functions to be given to the Legal Aid Board, areas over which your Lordships expressed concern during the passage of the Legal Aid Bill. Noble Lords may be aware of further sets of regulations relating to legal aid which do not require affirmative resolutions but which have been laid before the House. Together, all these regulations will, within the framework of the new Act, form the basis of the operation of legal aid for the coming years. Subject to a few specific exceptions, for the most part they recreate the existing arrangements. However, we have also taken the opportunity to carry out a measure of consolidation and revision and to give effect to some of the recommendations accepted by the Government in their White Paper on legal aid which foreshadowed the Legal Aid Act.

The biggest change which underlies all the regulations is that the responsibility for the administration of legal aid will pass from the Law Society to the new Legal Aid Board. I should like to take this opportunity to express the Government's appreciation of the service the Law Society has provided to the public in administering legal aid for nearly 40 years. I expressed that appreciation during the passage of the Legal Aid Bill, but I believe that it is appropriate, as the time is coming very near, to do so again. It might also be appropriate at the same time to wish the Legal Aid Board well in taking up the functions which the Law Society is now relinquishing.

The Legal Advice and Assistance (Scope) Regulations prescribe the scope of ABWOR (assistance by way of representation) as well as of green form assistance. The House will recall that in the White Paper on legal aid in 1987 the Government announced their decision that assistance in the making of wills and conveyancing, should not normally be paid for out of public funds, and that they would take steps to restrict the green form scheme in these areas. This decision was discussed fully during the passage of the Legal Aid Bill through your Lordships' House. In any publicly funded scheme such as legal aid the money available cannot be infinite. It must therefore be directed to those areas where it is most needed and away from areas where there is a lesser need.

The Government have concluded that the use of green form advice and assistance to carry out a conveyance or to make a will are just such areas of lesser need. It cannot be right that the taxpayer should be asked to subsidise those who wish simply to arrange their own affairs. However, although it is not right for the public generally to continue to bear the cost of providing advice on such matters, I have recognised, in the light of consultation, that in particular cases there may be special needs and I am anxious to ensure that hardship is not caused to vulnerable people as a result of the proposed change. Accordingly, the draft regulations contain a series of exceptions from the general exclusion of conveyancing and will-making from green form.

My department has conducted a wide consultation with interested parties both on the form of the draft regulations and on the range of exceptions. As a result of the comments received, the original range of proposed exceptions has been extended. Conveyancing services will continue to be available under green form in all cases where they are necessary in order to give effect to any court order. They will also be available to give effect to the terms of a settlement in a divorce. Green form advice and assistance will continue to be available in relation to rental purchase agreements or conditional sales. These are methods of house purchase where, unlike a purchase under a mortgage where the property is transferred immediately but acts as security for a loan, the ownership of the property does not change hands until the final instalment of the purchase money has been paid. Participants in such transactions, who tend to be at the lower end of the housing market, can often find themselves in difficulties. That is why the provision is continued in that case. Nevertheless, although the provision of conveyancing services is generally to be excluded from green form I should stress that other forms of advice and assistance in relation to housing or land law are not. Thus, for example, a leaseholder concerned over his or her position under the lease may receive advice under the green form. If, however, the advice is that some form of conveyance is required, then the leaseholder will usually have to pay for that conveyance.

In the area of will-making, advice and assistance will continue to be available for wills to be made by those aged 70 or over, by single parents wishing to appoint a testamentary guardian, by the physically or mentally disabled and the mentally ill, and by a parent or guardian who wishes to provide for such a disabled person, whether he or she is an adult or a child.

The remainder of the scope regulations set out the extent to which ABWOR will be available. Unlike green form which is generally available unless excluded by regulations, ABWOR is only available to the extent that regulations provide. Accordingly, subject to certain modifications which I shall go on to in a moment, these regulations extent ABWOR to those areas where it is currently available. There are, however, three areas of difference. First, the House may recall that during the passage of the Legal Aid Bill I agreed that all child care proceedings should be treated in the same way for legal aid purposes. As a result, all child care proceedings attract legal aid under Part VI of the Act granted by the court and not by the Legal Aid Board. Some of the proceedings relating to child care which now appear in Part VI previously attracted ABWOR. Since legal aid can now be granted by the magistrates' court in question ABWOR is no longer required and these regulations do not extend ABWOR to any of the proceedings for which legal aid is available under Part VI.

The second difference concerns the duty solicitor schemes at magistrates' courts provided under the Legal Aid Act 1982. Technically, these duty solicitor services constituted a distinct form of legal aid, that is "advice and representation". Under the new Legal Aid Act this "advice and representation" has now become part of ABWOR and these regulations therefore extend to ABWOR to cover all representation within the scope of the existing duty solicitor scheme.

The third qualification relates to the granting of ABWOR by a magistrates' court or county court. At present a magistrates' court or county court may approve the provision of assistance by way of representation by a solicitor who is at that time in the precincts of the court and whose client is not already in receipt of legal aid. These arrangements therefore by-pass the normal mechanisms for the granting of ABWOR through the Law Society and are intended to provide for representation where it is required as a matter of urgency. These regulations will ensure that such arrangements will continue. However, the wording of the regulations has been revised to make it clear that ABWOR is to be made available by this means only in cases where there is a genuine urgent need and not as a form of routine provision of representation (as has been happening in some places) or as a means of avoiding the usual application procedures.

I am also seeking approval today for the Civil Legal Aid (Matrimonial Proceedings) Regulations. These reproduce the effect of the existing Legal Aid (Matrimonial Proceedings) Regulations 1977 which exclude civil legal aid from undefended divorce proceedings, subject to certain exceptions where full representation is required. The new regulations simply recreate the existing position.

I am seeking approval too for the Legal Aid (Functions) Order 1989. The Legal Aid Board's functions in relation to legal aid in criminal or child care proceedings are extremely limited. At present, however, criminal legal aid committees of the Law Society may hear applications for review of a refusal by magistrates' courts to grant criminal legal aid. They may also hear other applications in relation to the amendment or withdrawal of legal aid in criminal or child care proceedings and applications for prior authority to incur expenditure.

This order gives the Legal Aid Board the necessary power to enable its area committees to carry out the same functions. It will therefore allow the existing arrangements to continue in effect unchanged. The order will also allow the Legal Aid Board to take over responsibility for the promotion and publicity of criminal legal aid. This function has hitherto been carried out by my department. The board already has responsibility for publicity in relation to civil legal aid and advice and assistance.

Although it does not arise from the regulations under discussion today, I should mention that an anomaly has inadvertently been created by the Legal Advice and Assistance Regulations which are subject to negative resolution, whereby a duty solicitor who provides assistance by way of representation in relation to a warrant of further detention will be paid less than he is now. However, I intend to make further regulations, also to take effect from 1st April, to rectify the anomaly.

Finally, at this time of the year Lord Chancellors often come to the House with proposals for increasing the legal aid financial eligibility limits. Although not arising from these instruments, I should like to inform the House that this year I am proposing increases in the financial limits from 1st April. These increases are generally of the order of 4.7 per cent. which reflects the rise in the level of social security benefits. However, I am also proposing to raise the capital limit above which civil legal aid is not normally available by 20 per cent. to £6,000 and I am increasing the capital allowances made for dependants in assessing eligibility for advice and assistance by nearly 68 per cent. to £335 for the first dependant, £200 for the second and £100 for other dependants. However, this year, for the first time, the regulations giving effect to the increased limits will not require affirmative resolution procedure and I am not therefore seeking your Lordships' approval of those proposals today. I beg to move the first Motion standing in my name on the Order Paper.

Moved, That the draft regulations laid before the House on 6th March be approved [12th Report from the Joint Committee].—(The Lord Chancellor.)

7.15 p.m.

Lord Mishcon

My Lords, perhaps I may make it clear that while the noble and learned Lord has been good enough to address his remarks to all three Motions my noble and learned friend Lord Elwyn-Jones has, I know, some points he wishes to raise on the first regulations and the order before the House. I intend to limit my remarks to the Legal Advice and Assistance (Scope) Regulations 1989.

As the noble and learned Lord said, the regulations cover wills and conveyancing and matters in the county court. I want at once to pay my tribute to the noble and learned Lord for at least extending the group of persons who will be able to benefit under the green form scheme in regard to the drawing up of wills. Having said that—I have said it to the noble and learned Lord previously in the House—I wish that he had realised that even the extension of that scope admits exceptions that should be there and are not there and also admits that the scheme, by way of excluding wills from those who might otherwise benefit, is an administrative absurdity. I shall endeavour to explain what I mean.

First, in considering those who are exempted under these regulations one is immediately met by the difficulty that members of the public who might qualify, especially bearing in mind the type of people who could be involved, will fail to understand whether or not they are eligible for drawing up wills under the scheme. The qualifying categories are complex: people who are mentally ill and who have a mental handicap; parents making provision for disabled children; and people who are physically disabled or who suffer from a permanent serious illness. I pause only to deal with that last category.

I suppose that one of the most common examples of those who might want to make a will and who are not at all well off are people who have suffered some permanent, or perhaps not permanent, injury in an accident. Where the prognosis is doubtful they may wish to try to make provision for their family, possibly out of the small, or perhaps large, amount of damages obtained. If the amount of damages, is large there may not be the difficulty of approaching a solicitor and paying the proper fee. However, what is meant here? Who is to define someone who suffers from a permanent serious illness? Is there to be an accompanying medical certificate? Is the solicitor to determine whether he regards an illness as being serious? Is he to regard it as being permanent? How is the poor person to know whether he or she falls within that category?

There are still some groups who are likely to suffer hardship because they cannot afford to pay the solicitor's fee. Married couples are provided for, but what provision is there for unmarried couples who are separating and who own property jointly? No provision has been made for them. Where there is a dispute and misunderstanding in regard to who owns what as a result of not getting proper advice there will be an application for a legal aid certificate to cover the cost of reaching a property settlement and the consequent conveyance. One then moves into the world of conveyancing which is also covered by these regulations.

There will be only minimal savings achieved by the exclusion of will-making and conveyancing from the green form scheme. However, as I have said, many people may suffer as a result. This noble and learned Lord has already conceded that exemptions from this principle are required for a number of groups with special needs. Rather then sticking to this ill-considered proposal the Government should surely accept that it is unfair, unworkable and should be abandoned.

I spoke about an administrative absurdity. I ask your Lordships to consider what a solicitor is supposed to do when someone from the categories I have mentioned goes to him and says—having understood all this—that he thinks he is entitled to draw up a will on the green form scheme. Presumably the solicitor has to go into evidence of receipt of social benefits, and so on, in order to see whether the person is so entitled. Can one imagine the amount of adminstrative time of a solicitor that will be wasted as a result?

I say to the noble and learned Lord and to the House that it is a difficult matter to deal with orders or regulations and endeavour to upset them. We do not normally do that and my noble friends and I are not going to do that tonight. In view of the comments that I have made on this aspect I wonder whether the noble and learned Lord would think it proper to reconsider the regulation to which I am speaking.

The only other category I wish to mention is that concerning possession cases, which often go before the county court. There was a duty scheme in the county court that was working extremely well in various areas. One can well imagine the time of the court and the expense saved by someone being available, whether for plaintiff or defendant, in order to advise on the duty scheme basis. It may be advice as regards instalments to be agreed that would save the time of the court or concerning rental arrears and explaining to a tenant that he has not got a defence to a possession claim or that he has. It should be put in a very concise form and that is how it should be dealt with.

All these matters ease the working of the courts and the work of the profession. It is also of great benefit to the kind of people who badly need such help when the roof over their heads may be the matter which is coming before the court and which is to be advised on. To abandon this scheme as this regulation does is more than unfortunate. I end with the plea that I uttered only a few moments ago. In view of the feeling that there is in my profession as well as for the good of the public—which is the reason for the feeling in my profession—I hope very much that the noble and learned Lord will find it possible to reconsider this specific regulation.

Lord Elwyn-Jones

My Lords, the noble Lord, Lord Meston, has indicated that it will be more convenient if I speak at this point on the other matters. But I shall be very glad to give way to him if he takes a different view. I wish to begin with a preliminary observation concerning the complaints about the long delays that are taking place in processing applications for legal aid. The delays can extend for many months in some cases. That is clearly embarrassing for the litigant and it may be damaging to the conduct of the proceedings in the court. The delays may jam things up and complicate them. Perhaps the noble and learned Lord the Lord Chancellor can make some encouraging noises as regards what it is hoped to do. It may be that the new Legal Aid Board will be able to improve matters. There is certainly room for improvement, because the present arrangements are causing a good deal of dissatisfaction and anxiety.

I turn to the Civil Legal Aid (Matrimonial Proceedings) Regulations 1989. In paragraph 2 there is set out a list of exceptions to the exclusion from legal aid of Proceedings for a decree of divorce or judicial separation unless the cause is defended". Among the exceptions in paragraph (d) it deals with, an order declaring that the court is satisfied as to arrangements for the welfare of the children of the family, excluding representation for the purpose only of making such an application where there is no reason to believe that the application will be opposed". I wish to know, how far does that cover go? In wardship or custody in care cases there have been many hours of discussion on the prime importance of protecting the interests of the child in those proceedings. May we assume that in any problem as regards a child or when an appearance by or on behalf of a child takes place, legal aid will become available in those proceedings?

The next matter to which I wish to draw the attention of the noble and learned Lord arises from the Legal Aid (Functions) Order 1989. Paragraph 2(b) provides that among the functions of the Legal Aid Board is the requirement, to promote or assist in the promotion of publicity relating to the functions", of subparagraph (a) relating, as a generality, to legal aid proceedings. The need for a special effort to publicise the facts and the existence of the legal aid scheme is important. I have before me the valuable report by the National Consumer Council, Ordinary Justice. It calls attention to this matter. At page 80 it states: One problem with the legal aid scheme is that very few people know about it. The Oxford Centre of Socio-legal Studies' survey of accident victims found that of those who had consulted a solicitor, fewer than half had heard of the legal aid scheme and only a quarter knew of the legal advice scheme". A report emanating, I believe, from the Lord Chancellor's office states: Baldwin and Hill interviewed 124 clients who had been given advice under the green form scheme. They found that two-thirds of people had no idea about legal aid and did not know that financial assistance was available when they approached a solicitor". I believe that an effort of and at publicity is clearly called for. I readily concede that there has been an improvement in the provision of publicity though in 1986 to 1987 it appears that the legal aid administration spent somewhat less on publicity publicising the legal aid scheme than in the previous year. It is something that must be looked at. Posters and leaflets are being used. The report continues, Unfortunately, leaflets are not generally available in post offices, job centres or doctors' surgeries, and are not usually sent out by courts with summonses". I am not expecting the noble and learned Lord to give immediate answers about these matters but I hope that they can be looked at. I think that the requirement for increasing and promoting publicity is an important one that should not be overlooked.

Lord Meston

My Lords, I wish to join in thanking the noble and learned Lord for his introduction of these orders and regulations. It is important that we continue to have an opportunity to consider such orders. Those of us who were present during the debates on the Legal Aid Bill, as it then was, will well remember the concern as regards what regulations and orders should or should not be the subject of the affirmative resolution procedures.

The Civil Legal Aid (Matrimonial Proceedings) Regulations, to which reference has been made, are perhaps the most anodyne of the regulations before your Lordships' House this evening. They repeat almost verbatim the 1977 regulations. I am not aware that those regulations caused any hardship except perhaps to the lawyers, who had to say a nostalgic farewell to the undefended divorce.

I echo the point made by the noble and learned Lord, Lord Elwyn-Jones, in relation to paragraph 5(a)(d). I take it to refer to representation at hearings under Section 41 of the Matrimonial Causes Act 1973. In the modern divorce process the court's consideration of whether it is satisfied about the arrangements for the welfare of the children is its most important function in relation to the parties themselves. Lay parties get into considerable difficulties when appearing before a judge on a Section 41 hearing even when the hearing is not opposed. It is unlikely to be opposed by the other party. Nevertheless, one hears stories of parties who fail to get over to the judge the important information which needs to be conveyed to him. The result is confusion and distress.

The Legal Aid (Functions) Order gives rise to only one comment regarding the importance of speed in processing legal aid, including applications for prior authority to incur expenditure. As the noble and learned Lord, Lord Elwyn-Jones, said, delay, particularly in recent years, has been little short of scandalous, and has been rightly commented on, including judicially. I join him in hoping that the Legal Aid Board, which will come fully into operation on 1st April, will consider this matter urgently. The Legal Aid Board could hardly do worse than the present system.

With the Legal Advice and Assistance (Scope) Regulations we are in a sense travelling ground which was well covered by the noble Lord, Lord Mishcon, during the passage of the Legal Aid Bill. I shall not seek to comment on what he said in relation to wills, save only to join in asking what arrangements will be made to make both lawyers and lay people aware of eligibility for legal advice and assistance in relation to wills.

I wish to ask about the provision that legal advice and assistance are available in relation to the formulating of terms of an agreement where there has been a divorce but apparently are not available if the terms of an agreement are to be produced following an application, or threatened application, under the Inheritance (Provisions of Family and Dependants) Act, under the Married Women's Property Act, under the Matrimonial Homes Act or under Section 30 of the Law of Property Act, where, for example, one is dealing with an unmarried couple. The Government's attitude to legal aid in regard to the problems of unmarried couples is called into question by one other feature of the new regime for legal aid. There has been an improvement through the introduction of regulations to allow the legal aid charge to be deferred in cases where the parties are in receipt of money to provide a new home for themselves and their children, but that does not appear to have been extended to proceedings under Section 30 of the Law of Property Act. It appears to be a deliberate omission from the new regulations relating to the deferment of the legal aid charge. I wonder whether the noble and learned Lord will explain that omission.

7.30 p.m.

Lord Butterfield

My Lords, I wonder whether I may make a modest and I hope helpful suggestion regarding one point raised this evening by the noble Lord, Lord Mishcon. I refer to legal aid to help persons suffering from permanent illnesses to make their wills. The noble Lord asked what is meant by the phrase "permanent illness". It occurred to me from my medical background that it might be helpful to link the legal definition with the list of permanent illnesses under which NHS patients are allowed to have their medicines free of charge. Such a device could get around the problem.

Before those unfortunate people with permanent illnesses were given their NHS medicines free of charge, serious consideration must have been given to the question of relief. I am suggesting that the fruits of those thoughts might help to clarify the definition about which we have been worrying tonight.

The Lord Chancellor

My Lords, I am grateful for the response of the House to the regulations and to the order and for the helpful comment on definition. Perhaps I may take that last point first. As the House will know, I came to these matters with a general statement that legal aid was not to be available under the green form scheme for conveyancing and wills. As a result of the consultation, I have endeavoured to focus on those categories which appeared to me to be the most deserving for exclusion from that exclusion. It is necessary to define these categories to some extent. The green form scheme is fairly simple. It is true that the list of permanent illnesses would be worth referring to in difficult cases, but generally speaking it is a matter for solicitors to decide in the light of the circumstances. I do not think many people would have difficulty in deciding whether an illness would properly come under that category. The application of a certain amount of common sense, which is not at all restricted in its availability in this area, is reasonable. Self-certification by the client and common sense seem perfectly reasonable for this purpose.

Lord Mishcon

My Lords, as the noble and learned Lord knows very well, permanent disability is also referred to. Is he conscious of the fact—and I say this with the deepest respect—that a solicitor who wrongly claims under the green form scheme is guilty of an offence, a professional offence, and perhaps another offence as well? To put upon him the burden of deciding whether someone has a permanent illness or a permanent disability is surely something which the noble and learned Lord would not want the profession to bear. I regarded the noble Lord's intervention as helpful. Perhaps a definition can be inserted into the regulations subsequently if the noble and learned Lord adheres to the policy of the regulations.

The Lord Chancellor

My Lords, I said that I thought that the solicitor could readily advise. The idea is that the applicant should certify whether or not he is suffering from a permanent serious illness. Where there is certification of that kind, it is not likely that there would be much controversy. In a simple scheme of this kind that seems reasonable. It is a deserving category and I would rather include it than leave it out. Moreover, I do not anticipate any difficulty in the matter. We are merely asking the client to name the doctor just in case there should be any need to check up on the application. But apart from that, I should have thought that this is a simple matter and one which should therefore be allowed to stand.

So far as concerns endeavouring to define such cases more closely, I think that it is difficult to do so. As I said, I should prefer to have the provision than not allow people who suffer from permanent serious illness to receive the benefit of the green form scheme in that situation.

I turn now to the point raised by the noble Lord, Lord Mishcon, on the so-called duty solicitor schemes in relation to possession cases in the county court. There have never been any provisions for county court duty solicitor schemes, but what was happening in some places was that the regulations in the previous form were thought to have countenanced that possibility. The provision had not been anything like general, and in drawing up the regulations we have made it clear what the original position was intended to be; namely, that assistance by way of representation on the spot should be available only where it is required urgently. Further, it will remain available in matters of genuine urgency, but otherwise ordinary green form and civil legal aid will remain available under the normal conditions.

I shall pass now to the remarks made by the noble and learned Lord, Lord Elwyn-Jones. I agree with him that there is a good deal of scope for improvement—indeed, the noble Lord, Lord Mishcon, also made this point—in relation to processing applications for legal aid. The Legal Aid Board has been looking at the matter and of course it takes over responsibility formally on 1st April. It looks as though there is scope for improvement in the way that some of these matters are handled. I certainly hope that there will be improvement, and I shall be looking to the board to improve the speed with which such matters are handled. I am told that there seems to be considerable scope for cutting delays by changing the practices in area offices. I sincerely hope that that will be so, and your Lordships may take it that I shall be looking particularly for improvement in that area.

As regards the position on the satisfaction hearings, the exception contained in new paragraph 5A(d) is intended to apply unless the application is unlikely to be opposed. In other words, if it is to be a purely formal application, the provision will not extend to it; but if, for example, there is a genuine question arising in relation to a child, then legal aid will be available. As I understand it, that is simply a reflection of the present regulation and therefore no change is proposed in that respect.

The third point raised by the noble and learned Lord was in relation to publicity. Indeed, I mentioned that the Legal Aid Board will now have responsibility for publicity across the field. I shall certainly draw to the board's attention the points which have been raised in the National Consumer Council publicity and also those made clear this evening by the noble and learned Lord.

I think that I have dealt with most matters raised by the noble Lord, Lord Meston, except possibly the one about the postponement of the statutory charge. It does not seem reasonable to allow the postponement of the statutory charge for those people such as former business partners or cohabitants who may be affected by a variety of legislation. The dissolution of marriage is covered by specific statutes; in extending or giving the possibility of postponing the charge, it is really to that issue that I had regard. It is particularly in those areas that problems have been experienced. As the noble Lord knows, there was a feeling on the part of the legal aid authorities at one time that they had a power to do so. Indeed, it was tested, and ultimately the matter was resolved by giving a statutory power to do so in the particular situations that arise. However, I do not think it would be right to make that a general power. It appears to me that the power to postpone the statutory charge is a most specific allowance which should be carefully controlled.

On Question, Motion agreed to.