Legal Services

HL Deb 17 November 1992 vol 540 cc570-612

5.30 p.m.

Lord Mishcon rose to move, That this House takes note of the findings and recommendations contained in the report, A Strategy for Justice, published by the Legal Action Group and in particular those recommendations aimed at providing satisfactory services for citizens in need of them through law centres, advice agencies and the proposed community legal centres.

The noble Lord said: My Lords, the House, and indeed the nation, may well believe that a debate in your Lordships' House on publicly funded legal services has never been more necessary or timely. The recently issued report of the Legal Action Group—an organisation founded some 11 years ago as a registered charity with the aim of improving legal services, particularly in the field of social welfare law—supplies a very suitable basis, especially in the light of certain recent announcements in regard to legal aid, for discussing the whole question of what should be the proper provision of those services in the 1990s. That report is entitled A Strategy for Justice.

As I have indicated, this debate takes place, albeit fortuitously, but a few days after the announcement made by way of an Answer to a Written Question posed by the noble Lord, Lord Boyd-Carpenter, who appears to be ever helpful in such matters. It appeared in last Thursday's Hansard and on Friday last The Times reported it under the grim heading, "Deep Inroads into Legal Aid." The Answer was described as constituting, the most significant curbs on eligibility in the scheme's forty-year history". I summarise the proposals of the noble and learned Lord the Lord Chancellor, as I understand them to be. They provide—and this is in more senses than one the unkindest cut of all—that the lower income limit for civil legal aid (that is, the limit of disposable income below which an applicant for legal aid pays no contribution) is to be reduced to income support levels. On current figures that means reducing the limit from £3,060 to £2,213 per annum. Contributions are to be increased from one quarter to one third of income above the free limit and are to continue for the length of the case instead of, as now, 12 months. Legal advice under the green form scheme is to be abolished for all whose income is above £60 per week. That follows upon the history of dramatic decline in eligibility figures since 1979.

Between 1979 and 1990 the estimated proportion of households entitled to legal aid on income grounds dropped by 25.5 per cent.—from 69.7 per cent. to 44.2 per cent. In human terms that fall represented 15.3 million people, leaving only 37 per cent. of the population covered by the legal aid scheme compared with 66.2 per cent. in mid-1979. Between 1987 and 1990 alone, the numbers eligible fell by 5.3 million people. Because the capital limit is very low for advice and assistance, it is likely that the numbers actually made ineligible over that period is much higher than the figures I have just given. Now, these proposals will mean that many millions of adults will be required to pay legal aid contributions which they are likely to be unable to afford.

Never before have any government, so far as I know, attempted to reduce the free limit. It seems to have been with all-party agreement that the free limit was deliberately set above the level for welfare benefits, it having been recognised that those without the means to pay for such essentials as the rent for a roof over their heads were manifestly below the income group which could be expected to contribute towards their legal costs. If those proposals are carried into effect, it will place legal aid, for all practical purposes, out of the reach of almost all whose incomes are above the level of income support.

As regards the almost complete abolition of the green form scheme, except for those who receive income support, I can only emphasise what a great role that scheme has played in providing people of limited means with advice on problems which could be sorted out without resorting to litigation. If that proposal is carried through, the legal aid scheme will no longer provide that service other than for the very poorest of our citizens.

We are fast reaching the situation—indeed, we shall reach it if the proposals are carried through—where the proud name of the legal aid scheme, in truthfulness, will have to be changed to the pauper legal aid scheme. In that context I must perforce remind the noble and learned Lord the Lord Chancellor—indeed, he may even have been the author of the relevant words—of the assurance contained in the Conservative election manifesto of only some months ago. It stated: We are committed to enabling people with limited means to have access to legal services". I note with pleasure that so many distinguished Members of your Lordships' House are to participate in this debate. At the outset I ask the noble and learned Lord the Lord Chancellor, when replying, to give the House an assurance that before finally putting the proposals to Parliament, he will consult fully with such vitally interested bodies as consumer organisa-tions and both branches of the legal profession. Will he also refer the proposals to the Lord Chancellor's advisory committee on legal aid, giving it an opportunity to comment upon them and to make such recommendations as it thinks fit? Finally, when regulations dealing with the proposals come before your Lordships' House, will steps be taken by the noble and learned Lord through the usual channels to ensure that such important regulations do not come before the House late in the evening and that the fullest opportunity is given for them to be debated?

Of course, we must all realise that in the present economic climate, priorities in public expenditure must be examined and chosen with the greatest care. However, I make bold to submit that very high among those priorities, as A Strategy for Justice affirms, must always be the principle that justice and a knowledge of his legal rights must not be denied to any citizen merely because of lack of means. That principle now looks as though it is to be sunk almost without trace.

My plea is not on behalf of practising lawyers and certainly not on the issue of their remuneration. My plea—and it is the emphasis of A Strategy for Justice—is on behalf of the consumers. The noble and learned Lord the Lord Chancellor will undoubtedly refer, as he has done in this House on several recent occasions, to the fact that government gross spending this year on legal and advisory services will be over £1 billion. He will add to that the figures for planned expenditure over the next three years which were published last Thursday.

Undoubtedly, considerable sums are involved. But I must ask, as the president of the Law Society asked, whether approximately 1 per cent. of total public expenditure is such an exorbitant price to pay for a fair system of justice. Are we satisfied that in paying out those sums we have a coherent and cohesive plan by way of a national policy for the supply of legal and advisory services for those who, for lack of means, would otherwise not receive them? Has there been an adequate study of the availability of alternatives to our present procedures and policies?

I submit that at present there is no comprehensive national policy as such. There should be, for good social and economic reasons. I give but one example of what deserves to be looked at by way of economy and what I submit is a considerable reason for court proceedings being so costly to the Legal Aid Fund. It is that all too often proceedings are unnecessarily expensive in terms of time spent hanging around in court corridors. Indeed, it is not only the costly wasted time of practitioners which is involved; it is the inconvenience and frustration suffered often by parties and witnesses because of what frankly seems to be inadequate and at times—if I may be blunt—selfish administration in our courts. Too often—I speak in the main of magistrates, county and Crown Courts—our courts appear to be run almost solely for the convenience of those who administer them with all too little regard for the parties they are there to serve.

I ask for a national legal aid and advice programme and policy. If nationally funded and planned, much more assistance in the area of legal aid and advice could be obtained from organisations which now exist quite separately from private practitioners in the law. Especially with the proposed measures in regard to the green form scheme, those organisations should be incorporated in a national policy. Unfortunately, many of them are struggling and in some cases have had to close down for lack of comparatively small financial assistance. They are quite capable of supplying help and advice in matters which are so important, especially in current conditions, to so many of our citizens. I have in mind in that context, as did the report, problems such as those arising out of debt; problems of repossessions; problems in regard to social security; and problems about employment and attendant redundancy. In so many instances those organisations are able to give wise practical advice which often obviates the necessity for matters to reach the stage of litigation or indeed the necessity to consult private practitioners.

In continuing the submission as to the need of a coherent, cohesive national policy in which legal and quasi-legal services would be publicly funded by central government, I ask the noble and learned Lord the Lord Chancellor, as indeed does the report, what possible policy justification there is for retaining the historical but quite illogical and uneconomic separation of legal aid on the one hand and the voluntary advice sector on the other. What logical administrative argument can there be for two separate government departments to have responsibilities in this field; namely, the Department of Trade and Industry and the Lord Chancellor's Department? Surely that is an anomaly which demands correction? In addition, the report suggests that the Legal Aid Board should have its responsibilities enlarged and should have within its purview the entirety of legal and quasi-legal advice whether given by advice agencies, the legal profession or whatever.

In an integrated national policy the advice sector would provide an extremely important tier. Those independent agencies—and they must indeed remain independent—muster a substantial number of fine volunteers. They more than deserve to be encouraged. With a modicum by way of backbone of employed staff, properly supported nationally and properly planned from the point of view of location and need, they could fulfil what at the moment is a huge gap. Legal advice centres, the citizens advice bureaux and the considerable number of advice agencies of varying types, many of which are members of the Federation of Independent Advice Centres, should become a vital part of a national network. At this moment, without such a national integrated policy, those advice agencies have to function with complete uncertainty as to their future and depend financially upon completely varying funding from local authorities.

In 1990–91 the National Association of Citizens Advice Bureaux reported that, funding from county councils varied from nothing to close to £30,000: funding from metropolitan districts ranged from just over £30,000 to just over £560,000". I need not tell the House that current restrictions on local authorities' spending are throwing the whole future of those organisations into doubt. Nor need I emphasise the obvious in saying that the local authorities whose citizens have the greatest need of assistance in their area are the very authorities which are least able to afford to make the necessary grants. Indeed, they are unable in many cases to afford to carry out their statutory duties and this Motion is not about a statutory duty. As a result, citizens advice bureaux have been lost in metropolitan boroughs as far apart as North Shields and Camden. An urgent voice cries out in what may fast become a wilderness: that those organisations fulfil a national need, even more so when the Lord Chancellor's present proposals see the light of day, and that that need should and must be nationally recognised and financed.

Obviously, local authorities are best able to judge the requirements of their areas and must be consulted about them. Within the framework of national financial responsibility there should be a statutory duty upon local authorities to provide within their areas an adequate level of independent advice. The Legal Aid Board or a new body such as a legal services commission should lay down guidelines on what is deemed to be an adequate level and, based on objective indicators of need, there should be a central government grant by way of subsidy. They should and would continue to specialise in those areas which are of such importance to our poorer citizens, areas in which the legal profession itself frankly is not generally known for its specialist skills—the fields of social welfare law such as those I have already mentioned; housing, immigration, employment, debt and welfare benefits. All that in the era of charter rights for the citizen would appear to be elementary. Regional legal services committees, which have already proved their worth where they have been set up, should be extended to cover the whole country.

There is another area in which one would like to see those bodies—the law centres, the citizens advice bureaux and so on—help to fill a real lacuna in our judicial system. I refer to representation at tribunals which determine many matters in the social welfare field. It is an area which becomes more and more complex as we in this House have learned when grappling, for example, under the expert guidance of the noble and learned Lord the Lord Chancellor, with some recent legislation relating to a parent's obligation to maintain children, the arithmetical working of which he appeared to understand rather better than we did.

It is so unjust that in the vast majority of tribunal cases the government department has the benefit of representation and the citizen does not. In the case of industrial tribunals the employer very often has the benefit of legal representation and the citizen, especially one who for one reason or another is not a member of a trade union, has none. Perhaps I may remind the noble and learned Lord, if indeed he needs any such reminder, that his department commissioned a report from Professor Hazel Genn of London University which was submitted July 1989. It related to the effectiveness of representation at tribunals. That report quoted in turn the findings of the Royal Commission on Legal Services which found the position of representation on tribunals as being "unsatisfactory" in the availability of advice and representation. It recommended that encouragement and resources should be given to lay agencies which would provide this advice and representation. The Genn Report for its own part concluded: Representation of appellants and applicants contributes to more accurate decision-making and to the fairness of the process by which decisions are reached. If it is considered desirable that tribunals should achieve these objectives, and if those appearing before tribunals unrepresented do so because free representation is not available to them and they cannot afford to pay for representation, then the argument for improving access to representation is unassailable. This representation could so easily and most economically be provided by an agency employing both lay specialist advisers and lawyers along the lines of the already existing Child Protection Action Group, Citizens' Rights Office, some of the tribunal representation units and law centres. Included would be all hearings before the Social Security Commission, immigration appeal tribunals and industrial tribunals.

To conclude, I submit that some re-thinking about the Lord Chancellor's present proposals in regard to legal aid and some re-thinking about an integrated national policy has to take place.

I hope that in initiating this debate—a debate which has become all the more urgent and vital in the light of what I can only call the draconian proposals which have just been announced—the noble and learned Lord the Lord Chancellor will consider that a sincere attempt has been made to do some practical thinking on the lines of A Strategy for Justice. Others who follow me will make, I know, more useful contributions than I have been able to make. What is indisputable is that the debate is on a subject which many in your Lordships' House regard as one of high priority, especially having regard to the difficulties which confront so many of our people in today's economic conditions. The noble and learned Lord must know that this House will never forget our traditional adherence to the principle that justice and a knowledge of their rights should be available to all who dwell within our midst regardless of their means. That principle is now under dire threat. I beg to move.

5.54 p.m.

Lord Donaldson of Kingsbridge

My Lords, I am at a loss to express my appreciation of the really powerful speech we have just heard which included almost all the facts available. Most of us have prepared many things to say, but they have all been said and said better than we are likely to say them. In particular, the opening attack describing the changes now being considered was absolutely devastating.

When my old colleague asked me to support him in this debate there were no speakers listed to take part and the debate was for the next day. I said, "All right, you deal with the legal aid difficulties and escalations and I will deal with the advice centre side". But the noble Lord has dealt completely with both. Therefore, I shall try not to repeat them but merely add a few thoughts.

The first relates to a matter which I said I would leave alone; namely, the legal aid principle itself. The Independent today contains the suggestion that those accused and with previous convictions should get no help in the magistrates' courts. Nothing less than access to a duty solicitor could possibly cover that. If that is true, I hope that we can persuade the noble and learned Lord to change it. It may be just a rumour, but the idea that a man straight from prison, feeling resentful and wanting to get back to his old life which was not a very good one, should then be prosecuted for a petty crime without the right to advice from anybody, is intolerable. That is my first point. I repeat that nothing less than access to a duty solicitor can possibly deal with that situation.

The type of man we are trying to protect not only requires defence at law, but sometimes he also requires to be able to attack and to bring justifiable arguments against people who have been unfair to him. I have opened in error so many letters meant for my noble and learned namesake from Lymington that I am under no illusion as to the existence of a small but determined number of absolutely relentless litigants who will go on as long as anyone will pay for them, and a good deal longer than that. It is perfectly clear that there are some limits which have to be considered as regards legal aid. That, again, I shall leave to the lawyers to deal with. In particular, I shall look forward to the noble and learned Lord's comments on our joint correspondence.

I turn now to the need for help and advice for the weak and confused, without which the courts are bothered with innumerable cases which should never reach them at all. It must be nearly 30 years since I had the honour to chair the executive committee of the family service units in this country. Those units continue to flourish and to serve some of the neediest and most confused parts of society. They were expressly set up to help families which have been given up in despair by other helpers. Many of our clients came then, and probably do now, from local authority housing departments. They are sent to us as a last effort to avoid eviction.

I then learnt from my daughter, who worked for the FSU for a couple of years after her education, that the first thing one has to do is to make friends with the mother, gain her confidence, and go around the house searching for unpaid bills which will be stuck behind a clock, in the back of drawers, in the pockets of winter coats and all over the place. When they have been collected and listed it is possible to see the extent of the problem and as often as not to arrange weekly repayments with one or more of the creditors and thus gradually get things back to a manageable state. Any one of such cases left to itself might run into a court case and need legal aid.

I want to stress the case made by the noble Lord, Lord Mishcon, that one of the most certain ways of decreasing public expenditure on legal aid is to increase public expenditure on advice and law centres. I quote one sentence from the excellent report we are discussing. Page 20 states: Legal aid is, on the whole, only available where solicitors choose, for commercial reasons, to provide it". That will not do for a start. Nobody can say that that is any way to run a business. It is not acceptable and it shows that the whole set-up is topsy-turvy.

The report goes on to argue that, as the noble Lord told us, legal aid should be be part of an integrated strategy aiming at equal justice for all members of society. Again as the noble Lord said, the main weakness today is that the provision of legal help stems from the historical separation of legal aid from the voluntary advice sector, which has grown up in various forms. The noble Lord, Lord Mishcon, described them so I shall not bother your Lordships by doing so again, but they include the citizens' advice bureaux, the legal aid centres and the advice centres. The legal aid centres aptly describe themselves as, independent agencies mobilising large numbers of volunteers around a spine of employed staff". Expert voluntary advice and help is the cheapest and most effective kind available and, if I may say so without offence, is a most useful outlet for lawyers who are sometimes embarrassed by the size of their fees. It always amazes me that the Treasury makes no attempt to foster such work. As the noble Lord pointed out, these centres are haphazardly funded by local authorities. Some get a lot; some get nothing. As long as they are funded directly by the local authorities, nothing much will happen. If that is to be done by the local authorities then, to use the word which the noble and learned Lord, Lord Hailsham, prefers, the aim must be to have "hypothecated" rather than ring-fenced funds.

I should like to see that work carried out directly by the noble and learned Lord's department, or in any way that the noble and learned Lord the Lord Chancellor thinks fit, provided he takes the responsibility for ensuring that the provision goes right across the country and that it is not muddled up by a lot of other people, especially the local authorities, which in most of these cases are the enemy rather than the friend of the man in trouble. Local authorities may be great friends to people who are not in trouble, but anybody who is in trouble locally is nearly always in trouble with the local authority.

I think that that is as far as I want to go. I really believe that the recommendations could make everything very different for the poorest. Again as the noble Lord said, the truth is that modern social welfare legislation (relating to debt, as in the example that I gave; divorce; marital problems; immigration and all the other things) is so complicated that it leaves the uneducated struggling family at a loss. Whatever else we persuade the noble and learned Lord to do, we must persuade him to pay, say, 1 per cent. of the money that he is going to spend on direct legal aid on this indirect advice which is cheap. If that is done, I believe that there could be a change for the better which would help us all very much in the future.

6.4 p.m.

Lord Renton

My Lords, I join the noble Lord, Lord Donaldson of Kingsbridge, in paying tribute to the noble Lord, Lord Mishcon, who addressed us with his usual clarity and persuasion and who, in my opinion, set out the matter fairly and made a very formidable case for further action in this regard.

The debate is timely coming as it does so soon after the Autumn Statement, which defined new limits for legal aid of the kind which the noble Lord, Lord Mishcon, described. I have some experience of the evolution of legal aid because, like my noble and learned friend Lord Hailsham, I was in the Chambers of Mr. Eric Sachs, King's Counsel (as he then was), who was largely responsible for formulating the original legal aid scheme. It worked wonders within its original limits, but it gradually expanded. I also served for 18 months on what used to be called an "area legal aid committee", composed largely of solicitors. I was the only Queen's Counsel on it. I remember the genuine concern that the solicitors showed in trying to get things right in the relatively early days of the scheme—I am speaking now about the middle of the 1950s. In practice, I eventually did a good deal of legal aid High Court work.

Since the scheme was started back in the late 1940s, there has been an enormous increase in the acknowledgment by Parliament of the people's rights, and new tribunals have been established in order to assert them. As a result, the work of the courts has increased. Very recently, and thanks to the Children Act (which my noble and learned friend the Lord Chancellor introduced in 1989) there has been a most remarkable extension of the rights of children. It is estimated that 7 million children now have rights of their own in the courts which they never had before. Previously, those rights had to be used by other people. That, in itself, is a very big step.

Over the years, the legal aid scheme has done a lot to achieve justice but as all of us, including the noble and learned Lord the Lord Chancellor, are conscious—by implication the noble Lord, Lord Mishcon, admitted this—it has become a very great financial burden on the public purse. It is hardly surprising that in the present conditions my noble and learned friend the Lord Chancellor and the Treasury have had to think of some way of limiting legal aid. Some will say that the limits are a bit too tough; others will say that they are inevitable. But the point is—and that, I think, is the point of this debate—that those limits on legal aid make it even more necessary to consider and support alternatives, some of which were mentioned by the noble Lord, Lord Donaldson of Kingsbridge, as well as by the noble Lord, Lord Mishcon.

Before going any further, I must make a confession. I have a longstanding public engagement this evening which I cannot avoid, so I cannot stay very long for the debate. I am therefore keeping my speech very short. What I should like to do in the time that I shall engage your Lordships' attention and indulgence is to praise the efforts of the Legal Action Group and to say how remarkable the book, A Strategy for Justice, is. It is thorough and I thought that it was truthful. It is perceptive and delves deeply into the problems. Its recommendations, let us face it, are very far reaching. They would cost a good deal of taxpayers' money if fully implemented, but would of course save money on legal aid. We should note in passing that those recommendations would require major legislation—and quite a lot of it. It would not come all in one Bill because, among other things, it is said that there must be more law reform, and that opens the door very widely.

So, what is to be done? It would be tempting for a government to suggest that there should now be another Royal Commission to consider the whole thing in the light of what has been put forward in A Strategy for Justice, and in the light of this debate. I hope that that will not be done. I do not think that it is necessary, and it would take too long. It is better for the Government, Parliament and both branches of the legal profession to consider the proposals in A Strategy for Justice and try to get consensus on general principles, as the noble Lord, Lord Mishcon indicated. That is important so that we know exactly what we are aiming at.

We should be building on what is already there. The legal aid centres and advice agencies do good work and there could be more of them. I give that as one example of building on what is already there. But much more could be done. Then, having agreed on the general principles, particular steps could be taken to implement them as and when time and money permit. There is great opportunity given for enabling the people to enjoy their rights and to get justice done. Although I could be accused of suggesting piecemeal solutions, the practical way is to take the step-by-step approach in this matter.

6.10 p.m.

The Lord Bishop of Liverpool

My Lords, if you seek to work with Judaeo-Christian insights into public policy, it will not be very long before you come to the rule of law. Indeed I recall taking part in a brainstorming exercise some years ago when some of us were encouraged to set out public issues in order of importance. I came up with the rule of law at the top of my list. I agree with the noble Lord, Lord Mishcon, that access to legal services is as high a priority as we could name. Equality before the law is part of our democratic ideal. I welcome the report of the Legal Action Group because its recommendations seem to me to combine that ideal of equality of access to legal services with realism about how those services can be delivered.

Our Church report Faith in the City, published in 1985, and the subsequent report Living Faith in the City acknowledged the specific value of law centres and at the same time flagged up the precarious nature of their funding. As chairman of the Church of England Board for Social Responsibility, I am glad to say that the Churches have seen the importance of supporting legal services within the community. For example, the Church Urban Fund recently provided funding of £30,000 in partnership with a trust over a three-year period for a lawyer to be appointed at the legal centre in Aston, Birmingham.

The value and importance of such legal services in the community was brought home to me in Liverpool, following the Toxteth riots of 1981. Leaders in the community came to us as Church leaders asking for us to help them. They believed that their greatest single need was to have a law centre. After long negotiations a plan was agreed. We were not to have control over what was properly to be accountable to the local community. The Churches would have representation on the management committee, as does the Liverpool Law Society, and we would offer to help in finding support, as we have continued to do over 10 years, some coming from Church sources, some from trusts and some from companies. My friend Archbishop Worlock went to see a wide range of people before the launch, including the noble and learned Lord, Lord Hailsham, who was then Lord Chancellor, a Home Office Minister and the noble and learned Lord, Lord Scarman. On all sides we were encouraged. It was seen as a good idea. But the means to support it were not willed.

The only hesitations I remember in those conversations were that the centre might become political. We felt that those who said that did not begin to understand how deeply alienated are many people in that community from the whole process of city, politics and the settled life of society. I am very thankful that the Liverpool 8 Law Centre came into being and that, through many times of anxiety about funding, it has continued through these years. In that very deeply hurt and deprived community people have found to their surprise that the law can be a friend. That has several spin-offs. When the law centre was launched there was no black barrister, solicitor or solicitor's clerk in Liverpool. Those gaps have begun very slowly to be filled since then.

Funding has remained a repeated anxiety. The Liverpool 8 Law Centre has only had funding from the local authority for three years—for salaries only. Funding from charities is generally for only three years at a time without much chance that it will be renewed. Staff have to put much energy into generating funds when they have enough burdens to bear for the community without that.

The funding of the network that is described in A Strategy for Justice is very fragile. Only nine out of 57 law centres receive contributions from the Legal Aid Board. I remember that figure from 11 years ago. It is apparently still the same. They depend on local authority grants which are easily at risk for centres often challenge local authorities and become unpopular with them—the very people who are going to vote or withhold grants.

A Strategy for Justice is the right title: something more secure and universal is needed. Stringency of funds in local authorities is currently putting a number of law centres at risk. Depending on charitable funds and haphazard local authority grants makes the provision highly erratic. The noble Lord, Lord Donaldson of Kingsbridge, spoke of his years of experience with the Family Service Unit, of which I have the honour to be the national president now. I have the very good experience of making a president's visit to different cities each year and I can draw on my knowledge of Liverpool. I see in all those areas districts where there is need for such legal services, where people feel deeply estranged from the normal workings of our society. But in so many areas there seems to be no possibility of finding the funding.

I understand the limits to public resources. The noble and learned Lord the Lord Chancellor has said that legal aid must be better targeted towards those people whose needs are greatest. Recently, John Pitts, chairman of the Legal Aid Board, said of law centres: We need those targeting skills to use resources most effectively". There are many situations in which law centres will provide a more appropriate service than private legal practice because they are not constrained by the requirement of making profit. It may be that negotiations or education could avoid litigation. Might there not also be a very cost-effective investment in offering more resources to those working in the field of mediation? Set against a budget of £1 billion for legal aid, it seems odd that Mediation UK, for example, should find it so difficult to ensure adequate funding to develop its national role in promoting and monitoring local mediation schemes.

Like the noble Lord, Lord Mishcon, I deeply regret that legal aid is to be confined in effect to those who qualify for means tested benefits. That would be a serious blow indeed to law centres, for funding from the green forms is a major part of how they live. It would be an even greater blow to the low paid. I asked a lawyer who does a great deal of work in Toxteth to spell out for me who this new arrangement would hit. The example he gave was of a woman with no children, with a small part-time job earning, say, £100 a week. She would no longer qualify for legal aid. Suppose, he said, she was embroiled in divorce proceedings. She would now have to pay roughly a £40 court fee to issue a divorce petition and about £250 for a solicitor. Previously she would have been exempt from court fees and would have had to pay a solicitor between £5 and £70.

I believe that the report is right in recommending a mixed approach to the delivery of legal services. There is a need for flexibility and experimentation, but it is important that the most vulnerable members of our community have access to legal services which are well established in the community. They need to be consumer friendly. Many people are fearful of all the processes of the law. It is a very good day indeed when someone finds the confidence to think of the law as a friend.

In our priorities in this matter I believe that first and foremost should come the security of the established network of those 57 law centres. Many people are concerned that legal aid eligibility lacks sufficient coherence in terms of the criteria actually set. There needs to be much greater public debate both about the absolute size of the legal aid budget and how it is apportioned. That debate should not be the concern solely of legal aid practitioners on the one hand and the Lord Chancellor's department and Treasury officials on the other. Ensuring equality before the law should be the concern of us all, and often justice will not come cheap.

6.21 p.m.

Lord Archer of Sandwell

My Lords, the House will wish to acknowledge its triple debt today first to the authors of the report for accumulating so much up-to-date thinking and information; secondly, to my noble friend Lord Mishcon for drawing the attention of the House to the report and for the comprehensive speech with which he introduced this debate; and thirdly, if he will allow me, to the right reverend Prelate for reminding us that the subject that we are discussing today is not something that takes place in a vacuum but is an integral part in the life of local communities.

It is not difficult to point to defects in the present provision for legal aid and advice. The upper limits for eligibility—my noble friend referred to the lower limit—exclude large numbers of people who cannot make effective the rights that Parliament and the common law have conferred on them unless they have access to advice and, where necessary, to representation. In 1950 civil legal aid was available to 80 per cent. of the population. By 1973 that figure had fallen to 40 per cent. In 1979 my noble and learned friend Lord Elwyn-Jones was able again to extend that proportion to 79 per cent. That figure is written on my heart because virtually the last task that I was called upon to perform in government in 1979 was to introduce into another place the Bill that gave effect to that enlargement. Alas, by 1989, if we accept the figures of Mr. Michael Murphy—and I leave the analysis to those who are more numerate than I am—that figure has again fallen to 48.4 per cent. If people are to enjoy freedom under the law, those limits need to be extended. I am not speaking simply of the poorest groups. It is clear that we need to take account not only of people's resources but of the kind of litigation in which they may be involved. There are many people who could finance a county court action, or a day in the High Court, who would be crushed if they found themselves involved in a long hearing with a succession of appeals. So we may be looking for a sensible sliding scale in respect of eligibility.

Secondly, aid and advice are not available for a number of purposes for which they are clearly needed. Of course we need to make law and procedures readily intelligible to people who are representing themselves. Of course not every case requires representation by a trained lawyer. But we know at least since the Genn Report of three years ago, to which my noble friend referred, that those who have some representation have a significantly higher prospect of success. It follows that to deprive some people of representation is to deny them equality before the law. Like my noble friend, I should be grateful if, when he replies to the debate, the noble and learned Lord the Lord Chancellor could give us some indication of the Government's reaction to the Genn report. We have contained our curiosity for three years, and it may be that by now the Government have had time to consider some of these matters.

Thirdly, the noble and learned Lord the Lord Chancellor will not have overlooked a problem relating to the level of fees for those providing legal aid. This is not a matter for the benefit of lawyers. I say only that among the solicitors' profession it is becoming possible to make legally-aided work viable only by specialising. Not in terms of subject matter, which may be sensible, but specialising simply in legal aid work, while certainly in London and many of the larger cities there are many solicitors who are not prepared, because they cannot, to take legally-aided work. So there is growing up a limited and clearly-defined group of practitioners who are separate from the remainder of the profession.

It is not a question of whether they are better or worse, or whether their standards are higher or lower. Surely separation in this field is thoroughly bad. The philosophy behind legal aid since the Rushcliffe Report has been that those who are legally aided have available the same advice from the same practitioners as those who pay privately. If there were to be two services, or two professions—certainly one hopes there will not be two entrances for gentleman and players—that would not be the way to promote equality before the law.

Where we must most warmly recommend the report is its insistence, referred to by my noble friend, that we cannot discuss advisory services in airtight compartments. Of course the resources are finite. We need to look at advice and representation in the context of substantive law reform. Lord Elwyn-Jones was enabled to extend eligibility in 1979 because the formal hearing for undefended divorces had been abolished, and that was not uncontroversial at the time. I believe that money spent now on conciliation services in the area of family law such as those referred to by the right reverend Prelate could turn out to be a valuable cost-saving investment.

We cannot discuss legal aid without taking account of the other advisory services which are available. I believe now that the funding is extended among some seven government departments. Bringing them all within one departmental budget would be an important step forward, although I appreciate the political difficulties. The Royal Commission on Legal Services, which sat under the chairmanship of the noble Lord, Lord Benson, recommended a council for legal services, which admittedly they said should have advisory functions. The Society of Labour Lawyers in its publication More Law Reform Now argued that that council, whatever it was called, ought to have executive functions. This report speaks of a legal services commission, but I am not wholly clear from the report whether the authors propose that its remit should extend across the whole of the advisory services.

I would hope to see it identifying geographical areas in which there is no readily available advisory service at all, and identifying fields of practice where expertise is not easy to find. But it would also, I am sure, identify areas of duplication where there might be scope for savings. Certainly there are geographical areas where it is virtually impossible to have access to the advisory services. That may not appear a serious matter to those of us whose pedestrian activities are confined to walking from the front door to the car, but, if it entails two changes of bus, then, particularly if the prospective litigant did not have great confidence in the system in the first instance, that may serve to make such resolution as he or she had managed to muster evaporate. How many of us have been deterred from consulting a dentist because of a shower of rain?

The great virtue of the report is that it seeks to question some of the rigid concepts enshrined in our legal culture. The law centre movement has shown that the provision of services does not have to be kept rigidly separate from public educational programmes, or from identifying areas for law reform, or for providing practical experience for law students. I am old enough to have attended the conference of the Society of Labour Lawyers in 1967 when the idea of law centres was first ventilated. That gave rise to the report, Justice for All. But I do not believe that that was the last word; indeed, there has been a great deal of experience and certainly much thinking since that time. I believe that the law centre movement itself may need to develop new responses to the current situation.

I venture only to offer a respectful word of caution. Much of the material in the report, which I believe will prove to be of great value to future generations, is targeted to the future. We need to ensure that, in the process, the immediate needs of this generation are not overlooked. I say that because justice denied to an individual now cannot be retrieved 20 years further on. Therefore, I believe that we need to keep distinct our vision for the future and the urgent need, in specific areas, to act now.

The noble and learned Lord the Lord Chancellor has my sympathy. He has to reconcile an expanding need for resources with an ever meaner Treasury—although perhaps we should remind ourselves that the Treasury is a vehicle for the Government's economic policy. I hope that the noble and learned Lord will forgive me if I say that our sympathy with his position is not inconsistent with our insistence on the need for action. Your Lordships' House has traditionally sought to protect the rights of individuals under the law. That must take priority, in spite of our sympathy for the noble and learned Lord. After all, as my noble friend pointed out, we are discussing 1 per cent. of the national budget. I doubt whether there was ever a time when that function of your Lordships' House was more important than now. We are all deeply indebted to my noble friend for initiating the debate.

6.31 p.m.

Lord Alexander of Weedon

My Lords, I should like to endorse all the remarks made by the noble Lord, Lord Mishcon, on the importance of the work of the advice agencies, notably the citizens advice bureaux, and the law centres. It is important that they should be able to work within a coherent framework for their operations, and that such a framework should include some security of funding. I also believe that, while we all respect the importance of the pressure on the public purse, they are a remarkably cost-effective resource. I believe it is right that in the year 1990–91 the citizens advice bureaux handled 7 million inquiries at a total cost of £39 million, or at an individual cost of £5.50 per inquiry.

There are two aspects of the work of those agencies which seem to me to be of particular importance—and, I hope, fully in accordance with government policy—and therefore worthy of promotion. First, there should be clear explanation to people of their legal rights. That is a theme of the Citizen's Charter. Secondly, there should be advice to people as to how, wherever possible, they can deal with problems without recourse to the courts. That involves a saving of time, a saving of trauma and a saving of expense.

In passing, I believe it is most important that, wherever possible, the facilities of the citizens advice bureau or a similar advisory centre should be available at, or in the close vicinity of, the courts. I am sure that everyone who knows how the citizens advice bureau operates within the Royal Courts of Justice has been impressed by the work it carries out there and in other court centres where it is available.

Tonight I should like to concentrate upon the problem which seems to me to arise and to be inherent within our current adversarial legal system. This evening, I shall refer only to civil proceedings because criminal procedures are under consideration by the Royal Commission on Criminal Justice. As my noble friend Lord Renton said, for the past 40 years we have greatly enhanced individual rights; but, by contrast, our civil procedures have not been radically changed. They are seen by many as being prolonged, formal and expensive. They must increase and prolong the stress which is an inevitable, but unfortunate, aspect of litigation. I am sure the reduction in the legal aid threshold brought about by current pressures on public expenditure must exacerbate that difficulty.

How is the system seen? Justice, the all-party group which seeks to investigate miscarriages of justice and promote law reform, recently published its own pamphlet entitled Justice and the Individual. I shall quote from paragraph 1 of Chapter 1: Our present system of civil justice is Court-based and adversarial. Its use required skilled and expensive lawyers. It is not well suited to the needs of a modern democracy whose citizens find the civil judicial process daunting, especially because of its cost". I know that similar sentiments have been expressed by the National Consumer Council.

Our legal system is slow to respond to those consumer pressures and perceptions. Why? It has been understandably reluctant to forgo safeguards which it sees as an integral part of fair process. But, at the same time, there is a risk that by doing its utmost to uphold what is seen from the perspective of those who administer the law as being proper standards, it may yet ultimately betray the very purpose of the law which is to provide access to justice which is surely integral to fairness.

Practitioners of the law have tended to believe that people in dispute have a right to what has been called their "day in court". However, I believe that most people actually have much simpler and rather different needs: they want an independent review of their case and they want an objective assessment; but they want to get to the heart of their grievance and have their views as speedily, and as economically, expressed as is sensibly possible.

In the recent Justice report, we drew attention to the small claims procedure and welcomed the fact that the limit for arbitration had been increased to £1,000. But we also suggested that the limit should be raised to £5,000 with a residual discretion on the judge to refer the case to more adversarial processes where the nature of the case made that desirable. The report also expressed the view that the county courts should be more efficiently run with greater use of computers and word processors. I would welcome the view of the noble and learned Lord the Lord Chancellor of how he sees the extent of progress which his department has been able to make in that area.

I turn now to what is known as "alternative dispute resolution"—that is somewhat formidable jargon for a simpler form of problem solving. I am convinced that we must make more use of mediation and conciliation and that our adversarial procedures which may be necessary sometimes should not, because of that, be the norm. I once heard Warren Burger, the former Chief Justice of the United States, speaking in that country, say that in the 21st century he thought that many in society would expect lawyers to be, reconcilers not warriors; healers not hired guns". As we all know, that is a Utopian view carried to its ultimate extent. Within a democracy there will always be some issues where the rule of law requires that they should be resolved thorough process.

However, wherever possible, we should look to alternatives. I should like to speak briefly about one of which I have some experience over the past few years. I refer to the banking ombudsman. The system came into existence for the very good reason that, without it, individuals in disputes with large organisations would not have had an opportunity to have those disputes resolved because the court process was daunting and also a deterrent. So what people gain from the ombudsman system is a means of an examination of the case which would not otherwise be available. The emphasis is on conciliation. There is no oral hearing and the inquiry is conducted on papers. There are no costs to the applicant and the system is industry-funded.

Moreover, the ombudsman (who is currently a solicitor) is also able to develop norms for the industry in a way in which the operations of the court system cannot do, and he can reinforce those norms in an annual report. I find this a more flexible, more efficient and a more constructive jurisdiction that the courts can offer. As your Lordships are aware, there are other such systems. Nor do I hear the complaint that people feel this informal system deprives them of the rights and safeguards that they would have within a court's proceedings. I sense no great desire on the part of the public for the rigmarole and paraphernalia of court procedures to resolve these disputes.

As your Lordships will know, in some jurisdictions alternative dispute resolution has been developed as part of the court's jurisdiction. Some states of the United States offer mediation and conciliation under the auspices of the courts as an alternative to litigation. There has recently been a pilot scheme in New South Wales, where the judges sifted out cases which they felt it was appropriate to suggest should go to mediation.

I personally think that alternative dispute resolution is bound to develop further. I see advantages in it becoming part of the service offered by the courts rather than it developing fully separately from the courts. I should be interested to know whether the Government are considering the promotion of court-based alternative resolution as a way of easing pressure on the courts and giving parties a more easily accessible service.

Finally, a point on funding: money must be efficiently spent. That, as I see it, points to the Government taking the lead in promoting mediation and conciliation to avoid wasteful uses of resources where adversarial procedures are unnecessary. However, I should also like to draw attention to the proposal which we in Justice have been advancing for—I am tempted to say decades because it is almost two decades now. That is a proposal for a contingency legal aid fund. We raised it again in our recent report, of which I know the department of my noble and learned friend has a copy. I would be very much interested to know what the department's thinking is about the possibility of developing a contingency legal aid fund. We see it as a sensible aid to some litigants who otherwise would not pursue remedies.

In all this, if I am right in thinking that we need to look for simpler forms of problem-solving, the legal profession itself will have a large part to play. Some, I know, are cynical and others are sceptical. But I think that increasingly it is beginning to command respect. It is within the past year that the Bar Council and the Law Society have each produced a report on alternative dispute resolution. It is an issue in which the profession can make progress. The profession as a whole should seriously consider the extent to which mediation and conciliation techniques should become part of the education of lawyers. I hope, as part of this process, that the Government seek imaginatively to give a lead because this is one area in which we could seek to reduce delay, reduce costs and seek to compensate in some measure for the problems currently affecting the financing of the legal aid system.

6.45 p.m.

Lord Donaldson of Lymington

My Lords, may I join in the thanks and congratulations which have been tendered to the noble Lord, Lord Mishcon, not only for bringing this very important report to the attention of the House and providing an opportunity for debate, but for doing so with incredible skill as to timing. The timing could hardly be more relevant, following the announced intention to restrict legal aid costs.

I support almost everything the noble Lord said, and I say "almost" lest I miss something with which hereafter I might want to disagree. But, so far as my recollection goes, I support everything that he said and particularly the stress that he placed on the need for help in the fields of debt, housing and tribunal work. Those are the fields where the most people, and indeed the most disadvantaged, are involved.

Like other noble Lords, I can well understand that at the present time there is a need to restrict, or at least to cap, rising legal aid costs. But the question has still to be asked: where do the Government go from there? Restrict this particular funding by all means; but presumably if that is done, they have some alternative in mind. ADR has been mentioned. It is not a complete alternative but it is certainly something that needs to be looked at. Are the Government looking at it? There are possibilities in other directions, I do not doubt. In what directions have the Government looked?

In the absence of knowing what alternatives are proposed in the face of these swingeing cuts, I have a nasty suspicion that perhaps the Government do not accept the proposition, which I regard as fundamental, that justice and its availability to all is not an optional extra in a civilised society. It is one of the basic pillars of that society. That does not mean to say of course that it can only be provided by lawyers: very far from it. But justice itself seems to me to be something which—perhaps this is the wrong phrase but it conveys my meaning—is non-negotiable.

If we are not to use lawyers to the extent that we have previously used them, what is going to happen? The legal system in this country, for better or for worse, certainly in its higher reaches, has evolved on the assumption that the Government, in terms of resources, are responsible only for providing the judge, the courtroom and some minimal support in the form of a clerk, or something of that sort. Justice is administered in this country in the form of a partnership between the judge on the one hand and solicitors and counsel on the other. The judge relies to an enormous degree upon solicitors and counsel for assistance.

Soon after I became a judge, when I had a family in Canada, I propounded the idea that there should be an exchange of judges between the Canadian High Court and the English High Court—not an entirely disinterested suggestion. It was revealing to me that the Canadian judges said that quite frankly they did not think they would have much difficulty in sitting on the High Court Bench in London, but they told me that I could not begin to sit on the equivalent Bench in Canada, for the very good reason that I would not get the assistance from the Canadian Bar and legal profession which we get here.

If that is to be removed, or removed in part, we are entitled to ask: how is the system going to work? The immediate result will be that there are those citizens who just do not come to court. That will ease the judges' problems in some ways; but there will also be larger numbers of litigants in person who do come to court. Litigants in person are the bane of every judge's existence. The judge worries about whether he is overlooking something and whether he really is doing justice. He worries, with good cause, that he is taking far longer to try the case than he would otherwise do and that that is holding up justice for other people waiting in the queue.

What are we going to do about that? Are we going to provide the judges with judges' clerks—I use the American pronunciation—or some other assistance? What about basic assistance for the litigants? In the Court of Appeal we issue very clear and simple instructions to appellants as to how they are to make up a bundle of documents. A hard core either cannot read or, as I believe, can read, but totally fail to understand. The noble Lord, my namesake, referred to some of the correspondence that emerges. I wish that I could introduce him to some litigants; he would have had an even wider view of the horrors with which judges have to put up.

We tried. we tried to use the staff lawyers to help litigants, and some were helped. There were, of course, a few who did not want to be helped. The trouble was that there was no establishment in the Court of Appeal for staff lawyers to do the work. If those few we had were diverted to that kind of activity, their real work suffered. Thus I ask again: what alternatives are in contemplation? Is it proposed that there should be staff lawyers or trained staff—they may not have to be lawyers—who will assist litigants seeking to discover how to present their cases to the court?

There will be those whose familiarity with the legal aid scheme is much greater than mine who will want to comment in detail upon the changes which are proposed. I wish however to comment on one aspect. In the original safety net proposals, it was suggested, I believe by the noble and learned Lord the Lord Chancellor and certainly by me, that it is ridiculous that we calculate the contribution of a litigant on the basis of his available income for a limited period of 12 months. Litigation, if undertaken at all, should be about a serious matter. The average citizen of small means has no hesitation whatever in entering into a hire purchase agreement, for consumer durables or a car, extending over a period of three to five years. I cannot for the life of me understand why, if he is involved in serious litigation, he should not contemplate the same kind of commitment. After all, he commits himself to housing for a much longer period, although I accept that he has a property of a residual value at the end. He may not have that in the case of litigation.

Let us confine ourselves to consumer durables: three to five years is not unreasonable. I was absolutely amazed to hear that the current thinking of the Government is that contributions should continue for the duration of the case. What on earth does that have to do with the amount that a litigant can reasonably be expected to contribute? What if he has a really urgent case, one which we may say has national ramifications? I cannot speak for the trial divisions, although no doubt they would operate in exactly the same way as the Court of Appeal. In the Court of Appeal it would be brought on within a matter of days or hours. Is it to be said that his contribution is to be scaled down in that way?

On the other hand, there are many cases of lesser importance which, to the regret of the judiciary, have to be postponed in order that other more urgent matters can be taken. Is it to be said that the litigant's contribution towards the costs must be increased on that account? It makes no sense whatever. By all means fix a higher contribution spread over a greater period, but it must be a period which is fixed, just as it is under a hire purchase or similar contract. It can have no relevance whatever to the time taken, which may depend upon the pressure of listing or the sheer inefficiency of the lawyers advising him.

Incidentally, I mentioned listing. Is it really to be said that listing would have to take account of the fact that by not listing one case which was legally aided one was increasing the contributory costs of the party, whereas by listing another case where there was no legal aid it would not affect the litigant in any way?

Perhaps I may mention two other matters. The first is that I should like to see an increase in the efficiency, or at any rate see a check made of the efficiency, of the Legal Aid Board in deciding which cases shall be assisted on the merits and which shall not. In the Court of Appeal I have been very struck by the number of appeals which, on any view, were completely hopeless but which nevertheless were legally aided. I suggested to the board that it was not unreasonable in the case of an appeal which had been recommended by counsel, presumably on the basis that it was likely to succeed, and it then having failed—particularly if the judges indicated that it was hopeless from the beginning—that the board should invite counsel to make a report, free of charge, explaining why the appeal had failed. It is more difficult in a trial, of course, because witnesses may not come up to proof. But on appeal, we know what the facts are as found by the court; we know what the law is as found by the court. There are, agreed, a number of cases where the activities of the Court of Appeal cannot be forecast, but in a great many they can be forecast. I have been surprised at the number of those cases where the losing party has been legally aided.

Perhaps, in the same context, it is necessary to look at cases involving children. It is quite staggering the extent of the representation which is given in some cases. We may have mother, father, foster parents, guardian ad litem and the local authority all represented by counsel. On one awful occasion they were all represented by two counsel each. The only one of those parties who is not normally legally aided and usually on a nil contribution is the local authority. That type of case needs examination to see whether it is really necessary to have such expensive and diverse representation.

One last word, with apologies, about a topic which may not occur to noble Lords as being important. It is a point which will appeal to the noble and learned Lord on the Woolsack because the reform will cost the Government not one penny piece. There are two grounds for fear on the part of litigants. The first is the extent of the costs which he will incur. The second, which is just as important in my view, is the risk that he is taking that he may fail—perhaps through no fault of his own, if it is a doubtful case—and find himself visited with a totally crippling bill for the quite unlimited costs of the other side. I tell the House frankly—and I hope that the House will accept the first part of the proposition—that I am quite capable of conducting litigation on my own and without legal assistance, whether under the scheme or otherwise. However, I am not prepared to litigate unless driven into a complete corner simply because of the risk that I might find myself faced with a vast bill for costs from some rich appellant.

This is dealt with under the existing legal aid scheme by saying that where assisted litigants fail, their liabilities to the costs of the other side should be restricted to what is just and equitable in the view of the court. As a working rule the courts proceed upon the basis that it would be just and equitable that litigants should pay no more to the other side than they have contributed to their own costs. I am not entirely sure that that is a sensible formula but it is the formula which is adopted.

I suggest to the Government that if they are cutting down on eligibility for legal aid, they ought to put something in place which will protect those who have lost legal aid—and, indeed, a much wider class of people—from the deterrent fear that by engaging in litigation in defence of what may be a very real right, something may go wrong and they may be faced with crippling costs. I propose that this should be done by revising the costs rules in the courts so that where, if the disposable income of a party is under a given sum—it should be quite a high sum—the court has discretion in awarding costs against that party to look at the person's means and not award more than is just and equitable in all the circumstances of the case. At the moment we have no discretion in the absence of special circumstances which do not include the means of the litigant and costs follow the event. I hope that my noble and learned friend will take that suggestion on board. I sit down with apologies for having spoken for a long time.

7.2 p.m.

Lord Irvine of Lairg

My Lords, the House, as many of your Lordships have said, is grateful to my noble friend Lord Mishcon for calling attention to this important initiative by the Legal Action Group for improving access to justice. This is by no means the first time that my noble friend has spoken up for the voluntary sector. I well remember—perhaps he will allow me to remind him—that as long ago as 14th January 1988 when we sat together in Committee on the Legal Aid Bill in this House he moved an important amendment that the new Legal Aid Board should, have regard to the need to maintain and develop a competent accessible independent national network of advice centres and law centres". One object of that amendment was to provide a secure basis for the funding of the voluntary sector. On many occasions we on these Benches have sought to draw to the attention of the House the fact that there is no duty on central government to fund these bodies and that there is no duty on local government to fund them. In fact, the bulk of their funding comes from local authorities. Local authorities have to rely on such limited discretionary powers as they have; but at a time when they are suffering from the effects of the recession, from grant penalties for exceeding government spending thresholds, from charge cap-ping, and from the huge difficulties they experienced collecting the poll tax, it is small wonder that many local authorities have had to cut down on the voluntary sector as they struggle to maintain minimum statutory services.

My noble friend, on the occasion to which I have just referred, won support from many parts of the Chamber. The noble Baroness, Lady Faithfull, in a notable contribution—she makes many notable contributions on these subjects—emphasised the geographical inequality that, the whole country is not covered by Citizens' Advice Bureaux, by legal centres or by money centres". She called for, a network—or at least a survey to see how a network can be set up—to meet the needs of every part of the country, including the country areas".—[Official Report, 14/1/88; col. 1391.] However, the amendment was defeated by the vote on which the Government could call.

I have to say that the noble and learned Lord on the Woolsack on that occasion disappointed many when he replied that he regarded as, quite outside the legal aid field—matters with which, for example, Citizens' Advice Bureaux are concerned".—[Col. 1396.] I hope that this LAG initiative will bring forth a more positive and encouraging response this evening. The noble and learned Lord may not regard himself as compelled to defend, at any rate directly, the savage cuts in access to legal aid announced last week; however, I do not discourage him from such a defence. This House will certainly turn to that matter on another day, but this Motion directly invites him to respond to LAG's proposals for alternative access routes to justice. These may now be of some interest to the Government not least because, after last week's cuts, there may be some concern that their election manifesto pledge to enable people with limited means to have access to justice looks pretty tattered.

The basic problem is that legal aid has been treated as one issue, one problem, and the voluntary advice sector as another. The noble Lord, Lord Donaldson of Kingsbridge, put his finger on that central point. They should be seen as two aspects of the same issue: how the state can best secure access to justice. I, for my part, would accept LAG's central thesis—the need for a coherent and integrated national policy on publicly-funded legal services. With 7 million taken last week out of free access to justice, and with millions more compelled to choose between deterrent contributions to their legal aid costs, or going without justice altogether, it is absolutely obvious that it is the voluntary sector that will be asked to take up much of the strain.

The recession with its ever rising unemployment, multiple debt, the terrifying level of business failures and home repossessions, has hugely increased the burdens on the voluntary sector. I predict the pressures will become intolerable when the new cutbacks on legal aid really begin to bite. As the policies and legislation of central government give these voluntary bodies more and more to do locally, many have grave funding problems—as the right revered Prelate observed—and lead a hand to mouth, week to week existence.

The voluntary sector suffers from two basic weaknesses. The first is that it is not fashioned into a geographically fair national network ensuring equal access to justice. Everyone who has knowledge of these bodies is aware that the story of the generalist advice centres is one of serious geographically-based inequalities. The story of the specialist centres in many parts of the country is that they simply do not exist. So there are in fact two challenges to Government. The first is: do they have a policy for a geographically fair network of CABs, law centres and advice centres? The answer to that at present must be no. The second challenge is: do they have a policy for their secure funding? Again the answer, for the present, must be no.

The great bulk of the funding of the CABs, the advice centres and the law centres comes, as I said, from local government. However, I am sure that the great majority of people in this country would be shocked if they knew that there was so little central government funding; that provision is so haphazard and unequal across the country; and that neither local nor central Government are under any duty to provide any funding at all for any of these bodies.

The LAG initiative is a challenge to Government and in particular to the department of the noble and learned Lord the Lord Chancellor. The challenge is a well-meaning one. I suggest that the department should now respond by taking its own initiative to promote an immediate and intensive dialogue between the department and all agencies within the voluntary sector on how better access to justice can be secured.

There are many themes which should be addressed in that dialogue: what can best be provided by traditional legal aid; what can best be provided by the voluntary sector; or what can best be provided by a mixture of both. That dialogue should be free of "no go areas" on both sides of the dialogue. The issue of the provision of salaried legal services through the voluntary sector will have to be addressed. So, too, should the possibility of some provision of representation in the industrial and social welfare tribunals through the voluntary agencies, employing a mix of lay specialist advisers and lawyers. LAG's proposals for the gradual and planned introduction of a national network for community legal centres with core funding deserves the most serious consideration.

I ask: can funding come from a partnership between the Legal Aid Board and the local authorities, with central and local government having funding duties? What scope is there for extending franchising to advice agencies? Has the green form franchising experiment in Birmingham, affecting the Bromsgrove and Birmingham city centre bureaux, been judged a success? Does it point the way to a broad expansion of franchising for specialist para-legal casework to be carried out by the CABs in areas where the voluntary sector is specially skilled and interested; for example, debt and welfare payments?

Also, the agencies themselves must be ready to look with an open mind, for example, at their own structures. What can best be done by the CABs and what can best be done by the law centres? Should CABs receive public funding for in-bureau lawyers, or is law centre provision for that preferable? Is the answer for particular bureaux and law centres to try to negotiate a common approach according to their particular skills, experience and resources in each neighbourhood, because general, nationally-based answers to those questions are likely to prove inappropriate?

The ultimate question must be: how can publicly-funded legal services be most effectively delivered? I for one believe, along with my noble friend Lord Mishcon, that the Government's response to the Legal Action Group's imaginative initiative will be a touchstone of its readiness to engage with new ideas and new solutions to the growing denial of a fundamental right of citizenship by exclusion from justice.

7.13 p.m.

Earl Russell

My Lords, like all other noble Lords I am deeply grateful to the noble Lord, Lord Mishcon, for introducing the debate and for doing so in such a timely way. I have rarely heard the House so unanimous and rarely been in such total agreement with everything I have heard.

At this stage of the debate what can be seen with the naked eye tends to have been said. I therefore wondered whether there might be a case for using first the telescope and then the microscope, for taking a long-term view and then for looking at how the propositions are illustrated in my own local area of Brent.

In the year 1208 King John deprived one of his barons of his lands. The reason given in the record was: because we were cross with him". That is a necessary part of the background to Magna Carta. The arrogance of power is not confined to any century, to any country, to any party, to any type of person exercising power. It is part of the old Adam. What is so vital about the rule of law is that it is a means of controlling the arrogance of power. It ensures that those who hold power are bound to behave according to their own rules and that there are places where they can be held to account for it and which should be run at their own expense, for such the courts have always been. That is, of course, something which authority, through the centuries, has from time to time resented. It has from time to time resented it very bitterly indeed. That is precisely why it is necessary.

It has always been necessary to pay for the courts. Equally, it has always been necessary to recognise that some people must be able to plead, as the law used to put it, in forma pauperis. This is not new to a modern, subsidised society. It is as old as the law. The alternative is the use of violence.

During the debate I have been reminded of arriving in the United States in 1979 and receiving advice in my first week from people in Yale Law School. They told me that, if I were accused of anything of which I was not guilty which carried a penalty of anything up to and including a six-month prison sentence, I should plead guilty because the penalties of conviction would be less than the penalties of paying my legal bills. That advice somewhat disconcerted me and I hope never to receive it here.

The right reverend Prelate the Bishop of Liverpool made an absolutely central point when he said that it is essential for people to be able to perceive that the law is their friend. That is a condition of a civilised and law-abiding society. It is the central principle of the rule of law. I am reminded of the statement by Joan Twelves of Lambeth Council, who your Lordships may imagine has never been my favourite politician. When Lambeth won the poll tax capping case, Joan Twelves said that Lambeth was not used to winning cases in the courts. I could not help thinking what a wonderful experience that must have been and hoping that it was educational.

That is why the legal aid issue is so vital. I shall not gild the lily by adding to what has already been said except by expressing my entire and total agreement.

The advice function is equally vital. In many ways it is a different function, though it can overlap. Information can save a great deal of trouble, and as matters become more complex it can become more difficult. Every Tudor and Stuart historian knows the quotation from William Lambarde complaining about JPs groaning under stacks of statutes. The noble and learned Lord, Lord Simon of Glaisdale, is no longer in his place so I cannot ask him to remind me precisely how many pages those stacks of statutes have now grown to. Not many of us know them all.

I am sometimes asked by pupils about a precise point they need desperately in a Bill through whose passage I have sat. To my shame I do not always remember it, and it is to the citizens advice bureau that I turn on those occasions. It is facing an exceptionally heavy burden at the moment. I shall not repeat the figures which the noble Lord, Lord Alexander of Weedon, quoted, but they are worth remembering.

I entirely agree also with the noble Lord, Lord Alexander of Weedon, about conciliation. I agree about the need to get away, where we can, from the adversarial procedure. But I also believe—the noble Lord may not disagree with the proposition—that it is sometimes essential, in trying to seek conciliation, to be able to have the possibility of confrontation if it does not work.

People are not always very willing to listen. They are busy; they do not like being challenged. Sometimes they might listen with a great deal more attention were they to realise that, if they did not do so, there was a hypothetical possibility that a court case might follow. That is why we need law centres as well as advice bureaux.

I am sometimes reminded when dealing with certain authorities nowadays of a comment of one of my American colleagues on the American banks that they are impenetrable except to bank robbers. It is occasionally necessary to have an authority behind one in order to get the person with whom one is in conflict to listen.

There has been much talk about the overlap of functions between law centres and advice bureaux. I sympathise but there are problems as well. There are differences of function; there are differences of organisation; also there may be motives for amalgamation which may not necessarily be in the interests of justice.

I have here an article in The Lawyer of 7th April which says that the Law Centres Federation is gearing up to fight a trend among local authorities of seeking to amalgamate law centres with other advice centres into one-stop shops. There may be good reasons for that, but there are also reasons which may enter into it which involve costs. This may be simply a concealed device for cutting costs. We all understand the pressure that local authorities are under to cut their costs. It may also—this point is rather more vital—be a means of trying to gain control.

Authority has never much liked being challenged in its own courts. That is true of all kinds of authorities. Local authorities are no exception. So behind these mergers may sometimes lurk the spectre of a local authority trying to gain control. I think it was the noble Lord, Lord Mishcon, who said that those involved in such things must remain independent. That is absolutely central.

That brings me to the particular example of the London Borough of Brent, in which the noble and learned Lord the Lord Chancellor has, to the great gratitude of many people in Brent, recently become involved in efforts towards conciliation. We thank him for it. The London Borough of Brent is not the easiest body to talk to. Recently it issued a summons for poll tax default against a four year-old child. The mother informed the council that it related to a four year-old child. There was no response. The mother informed the council again, and again. Finally she turned up in court with the child on her shoulders. The magistrates threw out the charge but made some observations. The next thing the woman knew was the arrival of the bailiffs to distrain for the poll tax of this four year-old child. The bailiffs inspected the child's bonnets but decided not to distrain. What the bailiffs said to Brent Council I do not know.

Your Lordships will understand that it is a little difficult to talk to Brent Council. This is why it is so vital to have a body like a law centre. Should it not be able to achieve conciliation, which it values deeply, it could retain the option of taking cases to court and providing something to which the local authority has to listen.

Brent has decided it wants to amalgamate a number of its advice centres: the private tenants' rights group, (a very valuable organisation to which I have referred pupils in difficulty with landlords in Brent and which has done what was needed), the citizens advice bureau and the law centre.

The citizens advice bureau first raised the problem that it is required to be independent; it got the reply that that was too bad for them. It pointed out secondly that it was a national organisation and therefore could not entirely detach itself from its parent framework; it got the reply in effect: "not impressed". The law centre asked the council why it [Start ***] was doing that and one of its spokesmen said recently: "When I asked the chairman of housing for the reason behind the proposals, he said that it was council policy. When I asked why it was council policy, he refused to discuss it." That is like the words to King John: "because we were cross with him".

The council is trying to require three conditions of the law centre. They are noted in the council's minutes. First, advice is to be restricted to first stage advocacy, which includes the preparation of casework for hand-over to other legal practitioners where litigation is necessary. Secondly, there should be no campaigning. I do not know why and do not see any problem about that since they have not campaigned. Thirdly—this risks contradicting the first condition—there shall be no litigation against the council without previous consultation. That can conflict with the lawyer's duty to the client, but again one cannot tell that to the council.

Next in the council minutes is the council note that there is—as it somewhat coyly puts it—a problem about the law centre's tenancy. What has happened is that, by agreement with the council and on the council's invitation, it removed from one set of premises into another with the council's full approval and a £10,000 grant very generously given for refitting. Now the council says that the centre has entered the place illegally and is squatting there.

A document has come out as a result of disclosure in court in which an officer of the council suggested that the council should stop the law centre's grant so that it should cease to pay its rent, so that the council would be able to evict it for non-payment of rent. Noble Lords may see why the law centre is a little distrustful of assurances.

It may perhaps be relevant and may illustrate the general point about the arrogance of power that the law centre has recently helped a client on whom the council had attempted to pull exactly the same trick. Indeed, with this particular council chairman that is something of a course of conduct. He has done exactly the same thing recently to a women's refuge, which, sadly, has now closed. It was recorded in the council minutes that the refuge was under council control. The refuge worker was paid a salary by the council. People were referred to it by the council. The mayor attended the Christmas party wearing his chain of office. The full council heard counsel's opinion that it was a council refuge. The council said that it was a squat and nobody could tell it otherwise.

That brings me back to the arrogance of power. In 1610 King James I, in a rash fit of pique, exclaimed: "I will not be content that my power be disputed upon". A Member of the House of Commons who was a barrister told him that if he would only go down and listen to the courts of law he would hear his power disputed every working day of the week. That is how it should be and as I hope it will remain.

7.30 p.m.

Lord Browne-Wilkinson

My Lords, I am conscious of the fact that it is not easy to persuade a man of anything when you stand between him and his dinner. Therefore, I promise to be brief. The debate inspired by the noble Lord, Lord Mishcon, has ranged widely; but I wish to concentrate on a narrow issue. Anyone involved in the administration of justice is conscious of the fact that whatever happens inside a court is useless unless people can get into the court, be heard and present their cases.

Like all publicly-funded services, the legal aid system is under great pressure. However, for a number of years we have had the law centre movement. I suggest that during its history the movement has unanswerably demonstrated three great virtues which cannot be disowned. It will surprise your Lordships to hear that not everyone finds lawyers attractive people to meet. The local inhabitants—the less privileged of us—had a deep antipathy of crossing a professional's doorstep. Law centres have met the need to provide an accessible and welcoming form of legal advice to people who otherwise would not have taken it. That is their first virtue.

Their second virtue is that they cover most areas of the law which are closest to the ordinary man in the street; and which, surprisingly, are exempt from legal aid funding; for example, a man's job, his social security rights, immigration, discrimination and housing. Those issues most closely concern the man in the street; yet they are the very areas in which legal aid is not available. Those areas have been served by the law centres. I am not saying that they are alone in doing so but they are the major providers of services in areas which legal aid does not cover. In the present circumstances, it is unlikely that legal aid will be extended to those areas.

Thirdly, it is undeniable that value for money, by whatever criterion one judges that, given by law centres far exceeds that given by any other form of legal advice and representation. The centres are non-profit making. The people who work for them are content to work for modest salaries, and they have a great deal of voluntary assistance.

We have an accessible advisory system covering areas which legal aid does not and it is run at a moderate cost. Yet two law centres have already closed for want of funding and many are under enormous financial pressure. Speaking from the Cross-Benches I do not wish to become engaged in any party political debate. I am far from saying that I regard all law centres or the whole law centre movement as perfection. One aspect of the movement, which was touched on earlier, was its previous political affiliations. I know not whether that is correct or whether it still continues. However, I hope that my noble and learned friend on the Woolsack will explain the basis on which public funding is not being extended to an efficient system which reaches people and that he will assure us that that is not based on the fact that there is a difference between the political ethic lying behind the law centre movement and that in government. At present, I am unable to appreciate why for so many years law centres, which provide such marvellous services, have not been funded in the way that they should have been.

7.35 p.m.

Lord Prys-Davies

My Lords, I wish to apologise to the House and to my noble friend Lord Mishcon for being absent from the Chamber when the debate began. My pre-planned programme for the day was upset as a result of an outside appointment which I had to keep. I am grateful to my noble friend for having initiated the debate. A wide audience beyond this House will read his words with great appreciation.

The report of the Legal Action Group upon which the Question is based is thorough, comprehensive and radical. Perhaps I may be permitted to concentrate my comments on the law centres. They bear a strong resemblance to the report's proposed community legal centres. The House will know that law centres and legal aid centres have been strongly supported on this side of the House. We recall that our late colleague Lord Elwyn-Jones constantly kept the item on the agenda. Their great value is that they reach out to the community and provide all citizens with legal advice in neglected but important areas of social welfare law.

We have heard that once again the future of many of the 57 law centres is at risk, and that at a time when the need for their advice and assistance has never been greater and when it continues to grow at a faster rate than ever before. That rate of growth is confirmed by the figures on page 74 of the 1991–92 annual report of the Legal Aid Board. It is confirmed also by the National Consumer Council and the National Association of Citizens Advice Bureaux—let alone the experience of the advice desks of the law centres themselves.

The point has been made that hitherto law centres have emerged in our large cities. Nevertheless, research demonstrates the need for such centres in socially and economically deprived areas all over the country, and probably in rural areas too. It can be fairly said that the supply of legal services is in inverse ratio to the need.

Before long, a good deal of information will have been collected and analysed by the Cardiff Law School at the University of Wales. It will show a hidden need in the valleys of Mid-Glamorgan. In view of references made to the local authorities' contribution, I acknowledge that the study of the Cardiff Law School is being financed in part by the Mid-Glamorgan County Council. That county has immense social problems but fewer providers of legal services than the average county of England and Wales.

I agree that most of the services now provided by the law centres could in theory be provided by the solicitor's practice in High Street which is open on week days between 9 a.m. and 5 p.m.. Sadly, they are not. That is acknowledged by the Law Society. Solicitors in private practice, with some notable exceptions, do not focus on the provision of legal advice and assistance on social welfare issues. I doubt very much whether that will be provided by private practices in the foreseeable future. There may be diverse reasons for that apparent failing; but I believe that the main reason is that solicitors in private practice, either from preference or necessity—and I suspect it is the latter more often than not—concentrate on those fields which generate high profit costs. Social welfare law is not well recognised as a generator of high profit costs. To generate more income each fee earner tends to expand as quickly as possible into commercial law, property law, probate or insurance-based litigation and there to provide a high quality service, which is promptly delivered to a satisfied client.

In a sense the modern successful law firm is a centre of excellence in its own field; but sadly, a price is being paid for that. Three weaknesses follow. First, under modern conditions the profitable departments within a modern and successful firm providing services of a high standard are unwilling to cross-subsidise indefinitely the low fee earning departments. Secondly, smaller practices—a firm of perhaps half a dozen solicitors drawing three-quarters of its income from the Legal Aid Board—have been unable to attract or develop a sufficient caseload in the branch of law which concerns us this evening to enable them to build up a bank of up-to-date knowledge and understanding of the practices and procedures within the executive agencies. That is almost as important as a firm knowledge of the substantive law itself. Hence, the quality of the service available may not be as good as it would be if the solicitor had been moving with confidence around the regulations and procedures.

Thirdly, if a young, newly-qualified solicitor decides to take on board an occasional social welfare case, there is no senior partner at hand within the practice who can steer him in the right direction based on his experience within the territory.

In the result, more often than not a client in need of qualitative legal aid services, in those important branches of law with which we are concerned, has to look elsewhere for that assistance and advice. That is confirmed by the CABs. I believe also that it is confirmed by the Law Society papers, which we have received. A client looks to the CABs or to a law centre if one is available.

In the mining valleys of South Wales, and perhaps beyond, until fairly recently a client would look also to the compensation secretary of the NUM lodge. I recall with great affection half a dozen compensation secretaries who undertook a wide range of services and were competent to undertake any work, apart from representation in court or taking out a grant of probate. They would sometimes refer a particularly thorny problem or a point with wide implications to one of my colleagues—Mr. Cyril Mosely, in particular. Sometimes we would look to counsel for advice. I can well recall that on a grey October morning about a quarter of a century ago I telephoned the clerk to one of the leading silks of London at the time. He agreed to accept instructions without mention of a fee because I was without funds to instruct leading counsel. Later on, the Treasury Solicitor, prompted by Lord Elwyn-Jones, paid the fee. Our clients were the families in the mining village of Aberfan. This debate gives me the opportunity to acknowledge publicly our indebtedness to the noble and learned Lord, Lord Ackner, who accepted that brief.

Only nine of the 57 centres are grant-aided by the Legal Aid Board, a point powerfully made by my noble friend Lord Irvine. As I read the table on page 31 of the board's 1991–92 annual report, the grant amounting in total to about £850,000 is borne by the board's own general and administration account, if I understand the documents correctly. That is puzzling. Why is there not a separate fund for law centres just as there is a fund for each of the four main areas of legal aid expenditure? Most of the 49 centres are supported by local authorities. Therefore, it is not surprising that in the whole of Wales there is only one law centre; that is, the Adamstown law centre in Cardiff.

The Welsh local authorities have always given a very low priority to expenditure on the private voluntary organisation funding sector. Before we rush to be overcritical of that approach, I should explain to the House that there are powerful and complex historical and philosophical reasons for that ap-proach. It was that approach which, in another field, led to the setting up of the Tredegar miners welfare scheme, which became the model for the first NHS.

The voluntary sector in Wales receives from local authorities less than 40 per cent. of the funding supported by local authorities in the rest of the country. In the UK generally the law centres must compete with many tasks and demands for money which assail a cash-starved council.

I accept that if the funding were tomorrow to be borne by the Legal Aid Board from a specific fund for that purpose, that in itself would not solve the problem unless the board were given an increased budget or satisfactory ways are found to transfer part of the existing expenditure on legal aid from private practice to the law centres.

Sadly, at present the funding available to the Legal Aid Board does not enable it to undertake any new initiative which involves additional expenditure although it could be beneficial. That emerges very clearly in paragraph 6.31 of the annual report of the Legal Aid Board. It acknowledges that the board was unable to obtain additional money, which initially was small, to finance consultation on the proposal to fund duty advice and representation in the county court where so many of the debtors, hire purchasers, companies, former tenants and licensees end up.

The report briefly notes in that one sentence, We have now been asked by the Lord Chancellor's Department not to do so". Why on earth was the department so negative? Bearing in mind that the county court is such a vital and obvious arena for so many defendants, I should have thought that the department, indeed the Government, would have been anxious to give a high priority to the proposed initiative of the Legal Aid Board. I therefore attach considerable significance to the fact that the board was unable or unwilling to obtain the approval of the Lord Chancellor's Department.

As a result of last Thursday's announcement, like other noble Lords I fear that much worse is still to come. In the absence of a national system of legal advice centres supported by the Legal Aid Board, in the absence of adequate funds by the Legal Aid Board, and if the Lord Chancellor is in such immense difficulties with the Treasury, how can additional essential funds be found?

The House—and indeed the lawyers—have a duty to address that question. In view of the Law Society's position, which is geared to protect the interests of the profession, dare I mention that I for my part believe that a strong case can be made out for confining the green form advice and assistance to the local law centre or advice agency where the board is satisfied of its experience and expertise, and similarly in those cases which allow for lay representation. Of course there would be exceptions; but given good will they could be worked out.

I note from the society's briefing on the recent speech of the noble and learned Lord the Lord Chancellor to its National Conference that it would be opposed to such a restriction. I am sorry that should be its initial reaction. The Law Society is always conscious of the public interest and its own helpful policy statement on law centres is supportive of the concept of the law centre working in common harness with private practice. I would therefore be greatly encouraged if there were some indications that the society was prepared to rethink its attitude towards restriction of green form advice to law centres whenever that is appropriate. Possibly that is an area which the Legal Aid Board, with the active encouragement and support of the Lord Chancellor, could explore further with the Law Society.

I feel that the Legal Aid Board, for its part, has taken cognizance of the size and nature of the problem we are discussing this evening. I share the views canvassed by my noble friend Lord Irvine of Lairg that the Legal Aid Board should be actively encouraged to find some practical way of dealing with this greatest failure of the system. Its consultative paper on franchising issued at the end of October represents a move towards a planned approach to legal aid. Thus it should be one of the conditions of a franchise that a firm should develop expertise in those branches of the law so neglected.

The effect of that proposal over time would be the setting up of a kind of legal aid office in the private sector which had some of the attributes of the law centre in the public sector which we have come to know and learn to value, notwithstanding some imperfections. Unlike the public sector law centre, it would not be accountable to the community at large which it serves. It would not have the reach-out capacity which we believe to be so important, unless of course that could be brought within its remit and actively encouraged by the Legal Aid Board. That would be a kind of organic development which many of us would welcome.

In conclusion therefore right at the centre here in London we want more attention paid to the strategic direction in which the legal aid system should be advancing as we approach the end of our century. I earnestly hope that the Legal Aid Board with the sympathetic and active support of the noble and learned Lord the Lord Chancellor, and taking into account the powerful contribution of the legal action group, will provide the direction which is so necessary.

7.55 p.m.

Lord Williams of Mostyn

My Lords, it was an infinite pleasure to me to listen to the speech of my noble friend and supporter Lord Mishcon. It was a masterly critique informed by reason, if I may say so, as well as by passion and experience. Some things we appear to agree on. The first central proposition is that we all recognise that expenditure of public funds on legal aid cannot continue its inexorable rise year on year. Flowing from that, therefore, is the fundamental question of how available public funds are properly to be spent in the most productive way.

The answer to that question will require a coherent considered policy which, search as one can, is not evident to any of us, as my noble friend Lord Irvine of Lairg pointed out. I regret to say—I do not say this in any spirit of personal criticism because I believe that the noble and learned Lord on the Woolsack knows the personal regard I have for him—that the approach of the Lord Chancellor's department is crude, mechanistic and lacking in consultation. The response has been simply to cast out eligibility for legal assistance for millions of needy people. The numbers eligible for help fall year on year.

A person has no rights when, first, he does not know where they are and, secondly, cannot enforce them. More and more people will be left in ignorance of what the law should offer them by way of advice or redress. Even worse, those who dimly perceive what their rights may have been will be too poor or too afraid to try to enforce them. Perhaps I can give one simple illustration. A couple on an income as small these days as £8,000 per year before tax, with two children aged 8 and 12, will be assessed as liable to pay a contribution of £700 a year. I repeat, people will be too poor and too afraid to risk the enforcement of their rights. No couple with that income will be able to afford that sum. Even if they could scrape it together, they would be too fearful to risk it.

We have discussed on many occasions, in this House and elsewhere, miscarriages of justice. I intend to spend a moment or two on them. I do not refer to the headline miscarriages in regard to crime, but to the regular deep occasions when justice miscarries every day in this country. A man loses his job. He has no help before the industrial tribunal. That means he has lost his job, his home, perhaps his company car and quite likely his company pension. The employer is wealthy or insured. He is in an infinitely powerful position. There is nothing for the man who has lost his job. The man enmeshed in social security provisions before a tribunal has no effective redress. He barely knows his rights and he has no real assistance. People with personal injury claims will simply be afraid to pursue them.

Those are miscarriages in which we collude if we provide no assistance for people who are of the class which requires our assistance. I know that the noble and learned Lord the Lord Chancellor has spoken of legal insurance. That is a bare, mean palliative. The people of whom we speak this evening do not contemplate legal insurance; they cannot afford it. I am happy to reiterate what the right reverend Prelate said, that so many people who need legal assistance are afraid of the law; they are alienated by its systems and they do not know that there is redress for them.

I am obliged to the right reverend Prelate for returning at that precise moment because I was about to point out that I heard the noble and learned Lord, Lord Donaldson of Lymington, indicate that the litigant in person is the bane of every judge. I believe that our experience may be that, very often, the judge in person is the bane of every litigant in the eye of the litigant.

Law centres and the public facilities generally spoken of in this admirable report we are discussing are efficient and cost-effective. They provide a good service to the poor and unknowing. They provide that service near the place of need and at the time of need. The consensus among your Lordships seems to be that these vast sums are ill-directed; that they are not productive of what we all want; that there is little consideration put to the administration of this vast budget; and little effective consideration given to the ends which are supposed to be served.

I am deeply grateful to my noble friend Lord Mishcon for raising this topic, which is plainly one of enormous importance in this country. However, although I have joined in the gloom as much as anyone, we ought to bear in mind that the provision of legal aid and assistance at public expense is almost unique to this country. It is infinitely the best provision that is made anywhere in the world, whether or not one speaks of developed countries. In countries quite near to our own one very often finds no provision for civil legal aid and the meanest and most parsimonious provision for criminal legal aid, so I do not wish to be unduly critical of what is done. I well recognise the limits of public expenditure. I simply re-suggest that over the past 20 years there has not been a sufficiently considered policy for the spending of these enormous sums. Frequently, what is spent at the moment is not productive to those who really need it.

8.3 p.m.

Lord Ackner

My Lords, on the basis of alphabetical merit I usually gravitate to the top of most lists. When merit alone is the decisive factor the result, as your Lordships see, is quite inevitable. But in that situation I hope to be able to rely particularly on the indulgence of the House. I add my congratulations to those of my brother Peers to the noble Lord, Lord Mishcon. It takes me back a good quarter of a century when he used to be reckless enough to send me instructions as counsel. They were always, as his speech was today, clear, concise and exhaustive. They frightened me to death because the question at the end of an instruction was almost always of immense difficulty.

I had occasion last Thursday, when addressing your Lordships, regrettably rather late in the evening, to quote in abbreviated form from Bernard Shaw's The Devil's Disciple. The occasion was on the Third Reading of the Judicial Pensions and Retirement Bill. We were concentrating on an amendment dealing with the position of a judge who became disabled at an early stage of his appointment and/or died of that disability. So we concentrated also on the position of the widow.

The clause in the Bill was castigated by my noble and learned friend the Lord Chief Justice as "nothing short of shameful" and the amendment proposed by the Government as "mean in the extreme". It occurred to me that the same quotation, but this time perhaps in full, was equally pertinent to this debate. It reads: The worst sin towards our fellow creatures is not to hate them, but to he indifferent to them, that's the essence of inhumanity". Indifference can arise out of a variety of attitudes. Perhaps the one which is most open to criticism is to pay lip service to a given need and then to ignore it.

In November 1983 the Government, having taken four years for its consideration, gave their response to the report of the Royal Commission on Legal Services (the Benson Commission). It is in Command Paper 9077. At the foot of page 10 this statement is to be found: The Government believes that legal aid should be available to assist those of small or moderate means, by giving them the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately; provided that it has been shown that there are reasonable grounds for pursuing or defending the right in question". That now has to be re-written. One deletes the word "small" and either puts in "very small" or "minute". One certainly takes out the words "or moderate".

As the noble Lord, Lord Williams of Mostyn, said, it is axiomatic that one cannot begin either to pursue or defend a legal right efficiently or effectively unless one is first aware of the existence of that right and knows how to pursue or defend it.

In his speech on 19th December 1989 on the Second Reading debate of the Courts and Legal Services Bill (Hansard, col. 122) my noble and learned friend the Lord Chancellor said: Our keynote is to improve access to justice for all who need it. There are three elements to this". The noble and learned Lord then identified the third element in these terms: an efficient and effective scheme to make public funds available to those who need legal services and cannot meet the costs themselves". The keynote now is to be heavily muffled, if not rendered totally silent.

There can be no dispute that there are areas of the law which impinge disproportionately on the poor who are quite unable to obtain access to advice and assistance which they quite often desperately require. I refer to what has been comprehensively described as social welfare work, which is the law relating to housing, immigration, employment, debt and welfare benefits.

It requires no imagination at all to foresee that if everything is left, as the Government sometimes desire, to the mechanism of the market place these areas of the law will be—as, of course, they are now—under-resourced. Practice in such areas does not even pay a significant proportion of the practitioner's overheads, let alone make a contribution to his profits. At a time of serious recession there is no scope for the cross-fertilisation which exists when there is an adequacy of profitable work. I urge the Government not to be obsessed with the pursuit of cost-cutting.

Some years ago when we debated the Courts and Legal Services Bill—and Part I in particular—your Lordships were concerned with whether large areas of jurisdiction could be effectively transferred to the county courts. We heard horrifying stories of the extent to which cost-cutting had affected the administration of justice in those courts. The clerks were told not to use first-class postage and to use only second-class postage. Electric bulbs were not replaced until darkness had almost descended.

A quite dramatic example which I heard from a judge in the west country whom I know well arose in these circumstances. A litigant in person, a husband, had been ordered to execute the necessary conveyanc-ing documents to enable the matrimonial home to be sold so that the proceeds could be divided. He refused to sign the documents so he was brought to court and the judge kindly sought to persuade him that if he persisted in refusing to obey the order he would, with great reluctance, have to commit him to prison. There would be no alternative. The litigant in person insisted that he would not sign. The judge said, "You give me no alternative" and made the committal order. There was no bailiff available because staff was being cut down, so the judge said, "Kindly wait at the back for the bailiff to come". Being the first case in the court's list, the man waited all day, but still no bailiff. So he was sent home with the polite request from the judge, "Would you kindly wait at home for the bailiff to come and collect you?" The man went home and he waited and he waited. He grew more and more depressed and in the end he burned the house down. That is a wholly true story, and is an indication that the pursuit of shortsighted economy is self-defeating.

I have recently received a Home Office publication entitled Costs of the Criminal Justice System, which I have not yet had time to read in full. I have, however, observed the following statement in the introduction to this work. I quote: The need to give value for money is an important factor which courts should bear in mind when deciding what is the appropriate decision to make in any particular case". That is referring to criminal cases.

I find the generality of this observation quite startling. How on earth is a judge expected to reflect this philosophy when considering the appropriate sentence for a serious rape case, an armed robbery case, a case involving death caused by dangerous driving, drugs-related offences or offences in a similar category?

As I have urged previously upon your Lordships, penny-pinching is almost invariably a self-defeating operation. I have always thought that starving the family advice and conciliation services of the necessary money only results in losing, in many cases, the opportunity of preventing costly breakups of marriages. Early advice and assistance in the field of social welfare is bound to result in many instances of substantial savings in social welfare payments, let alone valuable court time.

I urge my noble and learned friend the Lord Chancellor to treat any money—and not a great deal is being required to assist in extending the legal advice centres—not as mere expenditure, but as an investment; and not only as an investment in justice but as an investment in terms which the Treasury can understand. In practice, it will save an immense amount of costs.

8.15 p.m.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, if the list of speakers is dealt with on the basis of merit, I obviously come below my noble and learned friend Lord Ackner as well as all of your Lordships. We have had an extremely interesting and, for my part, an extremely useful debate. I join in the congratulations to the noble Lord, Lord Mishcon, who selected the date with such consummate skill.

I do not think that this is the time for me to deal in detail with the proposals put forward in relation to the public expenditure announcement of the Autumn Statement last Thursday, except to say that after these proposals are given effect, our estimates are that the legal aid budget in England and Wales will grow to £1,284 million in 1993–94, to £1,406 million in 1994–95 and to £1,528 million in 1995–96. There is no question whatever of the legal aid budget being cut. Quite the opposite—it is rising inexorably. It would obviously have risen more if steps had not been taken to contain it. It is no particular pleasure to me to have to take such measures but I have sought, as I have explained, to protect the poorest in our society against this so far as I possibly can.

The intimation of what I am proposing is quite detailed. Obviously, I am willing to receive representations from all the bodies to which the noble Lord, Lord Mishcon referred. I would find it particularly useful if the representations contained suggestions on how the budget might be contained otherwise than I have proposed.

The principle theme this evening is A Strategy for Justice, the work of the Legal Action Group. I read that work with great interest; indeed I have discussed some of these matters with members of the Legal Action Group previously. The situation so far as legal advice centres and law centres is concerned is that I believe that they have a very useful role to play. I also believe that the determination of precisely what form the centres should take is a matter that should grow from the local community. I do not believe that it is satisfactory to seek to impose some national pattern —whether one calls it a "strategy" or whatever—on these particular institutions. Those who have worked in them take the view that they should be developed out of the local community, with the local community having a sense of propriety about the institutions which, I think, makes for a strong bond and makes it easier for those who have some problem to go to the centre rather than to seek some other type of advice.

The noble and learned Lord, Lord Archer of Sandwell, mentioned the difficulty of having to go to a number of different places. Looking in some detail at what has happened in Brent, I see that Brent law centre would prefer that, on the whole, its operations were separate from those of the other agencies whereas Brent thought that these should be put together. I discussed this in detail with representatives of the Brent law centre not so long ago and there are reasons why, in their judgment, the old arrangement was better. That is just one example of the need to look at the matter from the point of view of local and community considerations.

In addition to expressing my appreciation to the noble Lord, Lord Mishcon, for initiating the debate, I should like to express my gratitude to all those noble Lords who have taken part. I listened to the debate with great interest. The noble Lord, Lord Prys-Davies, put his finger on what is for me one of the most important aspects. I refer to the question of where the money comes from to fund the law centre movement. Under the legal aid budget I provide core funding for some law centres but the legal aid budget also provides legal aid payments to law centres which undertake legal aid work. So there is an additional source of income to law centres in that area. I have been considering this matter for a considerable time. One of the difficulties I have had over my period of office is the rate at which the present legal aid system has consumed resources. That makes it very difficult in this time of acutely rising resources to make adequate provision for additional resources. I believe that what may be required is some re-ordering of the present system.

How does one bring that about? I have been trying to give that question some careful consideration also. I believe—and in this I follow the noble Lord, Lord Irvine of Lairg—that the franchising system which is being developed by the Legal Aid Board is probably the best method available for dealing with the problem. For one thing the franchising system enables us to specify the nature of the advice in question and will, for example, enable us to give some priority to the areas of welfare law, housing law, debt advice, in so far as that is legal advice, and so on. The franchising system which is being developed by the Legal Aid Board is a way forward which can be used without very large or sudden lurches from one type of provision to another. It is capable of being used differently in different local situations. Therefore I believe that there is scope under this system for a community based development which has appropriate national encouragement if proper standards can be achieved. It is essential to the franchising system that standards of quality and service are specified and adhered to. That is the way forward.

A Strategy for Justice deals with the matter on a fairly wide basis and does not attempt in any detail to assess the costs of the proposals. I am grateful to the noble Lord, Lord Williams of Mostyn, for saying what I believe to be true: that the legal aid system provided in this country is a very generous one by international standards. It is one about which I am certainly not complacent because I believe that it needs to be developed. The Legal Aid Board is a very useful way of taking that forward. The experience of the members of the Legal Aid Board is of vital consequence in this connection. I am particularly grateful for the help that the noble Lord, Lord Williams of Mostyn, has given me in seeking to identify new members for the board.

A number of particular matters have been raised which are not quite so central to the main theme as the matters with which I have already dealt. I am very much in sympathy with what my noble friend Lord Alexander of Weedon was saying about the possibility of giving service which was not the ordinary form of adversarial litigation. Progress in that direction is not without difficulty. As my noble friend said, I have increased the limits for small claims to £1,000 and I have also been anxious to extend the scope so that, for example, simple personal injury claims might be covered. Unfortunately, it has proved difficult to achieve any kind of consensus on that because questions of cost and the like have been raised.

One of the essential qualities of the present small claims system is the absence of fear of costs, a point to which my noble and learned friend Lord Donaldson of Lymington referred. I am not keen to depart from that aspect of the small claims procedure. On the other hand I am told that in order to make a claim for personal injury one needs medical advice. One does not get that for nothing. One also needs to get technical advice about the nature of the accident. One does not get that for nothing. The question is then asked: should not those costs be allowed? I am doing my best to secure some kind of compromise in that area but I do believe that the kind of litigation that is permitted under the small claims system is a good way forward. We have introduced measures which would enable that to he done without necessarily having professional legal help through opening the scheme to permit other types of help.

At the moment I am very concerned to try to develop a system along with the proposals made by the Law Commission in respect of divorce. That is a good area for some form of mediation using the system of voluntary agencies so far as that can be done. One of the difficulties, however, is that to which the noble Earl, Lord Russell, referred. If one provides that, one may also have to provide for litigation over and above. There is quite a risk that what should produce a saving if one provides for extra work to go into it will in fact mean a combination of the requirement for mediation in the first place and the cost of that and then the cost of litigation over and above. The devising of a suitable system for controlling that is something to which I am giving attention. Any suggestions that your Lordships may have about how it should be done will be received with warm gratitude.

My noble friend Lord Alexander of Weedon and other noble Lords asked me about computer support for the county courts. One of the first things that we have been able to do is to take out of the county courts altogether the banking function that they used to have which was a tedious money collecting process. They have managed to avoid that without detriment to anyone. The second thing that we have managed to do is to provide a summons production centre at Northampton for the automatic processing of bulk issues; that is to say, large organisations like banks and credit agencies, which have a large number of summonses to issue, put them on a tape and give them to Northampton which is able to issue them from there. We also have a bulk issue centre at Northampton to do the later processing. We had to change the rules a little to make that possible, but we are taking forward vigorously improvements of that kind. I have learnt—and some experience of other agencies in the public sector reinforces this—that one must be careful in developing computer systems that they will do the job required of them. I have a team at Northampton which is seeking to develop computer systems for the management of county court business, which is an essential part of the civil justice review proposals for court management of cases, instead of just leaving them to the parties.

My noble and learned friend Lord Donaldson of Lymington mentioned the possibility of some kind of special discretion to be granted in respect of litigants of small means who might be frightened of costs. My understanding of the law —here I speak subject, particularly as I am so late in the order, to correction by others—is that Parliament has given the courts a complete discretion on costs. It is true that the decisions that have been elaborated from that have perhaps made the discretion a little less flexible than otherwise it might have been, but the courts certainly have a wide discretion in these matters and I see no reason why, in a suitable case, they might not use it in the way that my noble and learned friend has suggested.

The noble Lord, Lord Donaldson of Kingsbridge, asked me about a consultation exercise being pursued in relation to criminal legal aid in the magistrates' courts. The problem with regard to this is that the present rules are quite difficult in practice to enforce. One of the results is that the National Audit Office, in seeking to audit the legal aid accounts, has found it necessary to qualify the accounts on the basis that it cannot be satisfied that the money is properly spent because it cannot check that the present rules have been properly complied with. I have therefore found it necessary to consult on what the new system should be. One aspect of course is that the Criminal Justice Act has changed the range of penalties that may be exacted in some cases. That is a factor relevant to the interests of justice test.

I think that the noble Lord may not have the complete detail of what is proposed. I am certainly looking at that in order to try to produce a workable system which is capable of being checked, and therefore capable of producing a basis on which the Comptroller and Auditor General can properly certify the accounts. It would be unfair to your Lordships if I were to detain your Lordships further. I have sought to deal with the main matters that were addressed.

Lord Archer of Sandwell

My Lords, before the noble and learned Lord sits down, can he at least indicate when we may hope to hear the Government's reaction to the Genn Report?

The Lord Chancellor

My Lords, I have reacted to the Genn Report on a number of occasions previously. I appreciate what was said there. I have repeatedly pointed out that it was not legal representation that Hazel Genn thought was necessary in these cases. I had in fact endeavoured to work on that in a particular example not very long ago in seeking to use the United Kingdom Immigration Advisory Service as a means of providing both advice and representation on a cost-effective basis such as my noble friend Lord Alexander of Weedon said was true of advice centres. I am sure that the noble Lord remembers the great pleasure with which that proposal was greeted by many in the legal services sector. It did not work, for reasons really connected with the UKIAS organisation.

I have sought ways—and I have not given up the search—in which the legal aid budget might be used to provide representation in certain areas. I cannot of course, in present circumstances, contemplate increas-ing the expenditure, but the method of franchising that I have described is sufficiently flexible to make it possible to consider this kind of thing as a way of taking forward that particular objective. But it has to be within the constraint that there is then less money available for other aspects of legal services covered under the legal aid system at the present time. I think I have given that answer—perhaps not elaborated to the franchising—and I have certainly appreciated in the past what Hazel Genn had said. Certainly I have always been on the lookout for ways in which to ameliorate the present difficulty, which I need not remind the noble and learned Lord faced him when in government as well as me.

I repeat my gratitude to the noble Lord, Lord Mishcon. It would not be a practical expression of that if I detained your Lordships longer than the 20 minutes that I have apparently taken so far.

Lord Mishcon

My Lords, it only remains for me to express my gratitude to all your Lordships for having participated in this debate and to the noble and learned Lord the Lord Chancellor for the way in which in his reply he has given consideration to what has been said.

If I may say so, I could have wished that the whole of this debate had indeed been televised. If it had, it would have served to counteract the farcically false way in which a programme entitled "The House of Lords", which sought to depict the typical activities of your Lordships' House and its Members, came over on Channel 4 yesterday. If anyone were prepared to sue the producers of that programme, I would hope that the noble and learned Lord would see that he got a free legal aid certificate.

On Question, Motion agreed to.