HC Deb 31 May 1949 vol 465 cc2039-47
The Lord Advocate

I beg to move, in page 12, line 40, at the end to insert: or has a reasonable expectation of receiving financial or other help from a body of which he is a member. The House will recollect that under this Clause we take power to make regulations to meet the special circumstances where the applicant for legal aid has available to him rights or facilities which might make it unnecessary for him to receive legal aid in whole or in part. There may, however, be certain circumstances where a person who has not the right to legal aid has reasonable expectation of receiving such legal aid. It may be that he is a member of some sort of society which, not as a matter of right but as a matter of practice, is wont to give legal assistance to its members. We feel that if he has recourse to such other means of assistance the regulations should provide for taking that into account just as in the case where he has as a matter of contractual right recourse to such assistance.

Lieut.-Commander Hutchison

It may be within the recollection of the House that subsection (3, a, iv) as at present drafted was actually incorporated in the Bill during Committee stage as a Government Amendment. In his explanation at that time the Lord Advocate mentioned that it would cover cases where motor cars were involved and there might be a liability for an insurance company to act for a litigant. That seemed a very clear and reasonable proposition, and we passed the Amendment without further discussion. I am not, however, quite sure what further bodies the Lord Advocate has in mind. He has not mentioned any this evening. Does he, for example, have in view trade unions or professional associations, or even such things as sports clubs? It would be of advantage to the House if he would give examples of what he means.

10.15 p.m.

The Lord Advocate

The type of case cited by the hon. and gallant Gentleman is the typical type of case we have in view. In these organisations it is usually found that legal assistance is not given as a matter of right; it is given as a matter of custom or practice, but the association or society reserves to itself the right not to do so. That is the big distinction between that type of case and the compulsory motor insurance where the insured person has a legal right which he can enforce against the insurance company. In the other type of case he has not the legal right which he can enforce as a matter of law against the society or association. If, however, it has been the practice or custom of an association to grant legal assistance in cases of that nature, we feel that type of case should be brought in, and the regulations will deal with that. It is difficult to consider these regulations at this stage. The proper time to do so will be when they come for consideration before the House, if they do so.

Lieut.-Colonel Elliot

We are getting a little meticulous in this matter. The right hon. and learned Gentleman and his right hon. Friend have deprecated strongly the importing of what has been called the Poor Law atmosphere into this matter, but are we not beginning to chase round the applicant in just the way that was deprecated in the case of previous applicants for assistance? The difficulty here is that the applicant cannot demand help from a body of which he is a member. He may have a reasonable expectation, but what the House is about to say to such an individual is, "You must exhaust every right"—to use a parliamentary cliché—"You must explore every avenue and leave no stone unturned before you come forward with a proposal that you should receive this legal aid or assistance."

I am thinking of the City companies of one kind or another from whom people may have a reasonable expectation of receiving financial or other help, but it is by no means a certainty. Are we not in danger here of fencing the table so meticulously that no sinner may approach even to the confines? The danger here is greater than the advantage which we may seek to obtain. I do not think that the danger of somebody getting this legal aid is like the attraction which morphia has to a morphia addict, or even which alcohol has to a confirmed dipsomaniac. He will not strive so urgently to seek legal aid. He will himself try to find any sources which are available. To say that he must exhaust, by application, every source from which he has reasonable expectation of receiving financial or other help, even if it is a corporate source, seems to me to be carrying it too far. I think the Lord Advocate would be better advised if he did not insist on the House accepting the words which he and his right hon. Friend have set upon the Order Paper.

Mr. McKie

I would add a word in support of my right hon. and gallant Friend the Member for the Scottish Universities (Lieut.-Colonel Elliot). I was delighted to hear him use a phrase which I used to hear when I was very young—"fencing the table." There can be few hon. Members in the House now who remember that time-honoured ceremony. I do not remember it, perhaps my right hon. and gallant Friend does, but I have heard a lot about it and his use of that phrase tonight was particularly apt when he stigmatised the right hon. and learned Gentleman for seeking to prevent applicants, as though they were sinners, from approaching this, we hope, munificent aid which is to be extended to them in the way of legal aid and advice.

There is another reason why we should not introduce words like "reasonable expectation." The right hon. and learned Gentleman is skilled in all the intricacies of Scottish law and will be well aware that there are occasions—I think I am using the right legal phrase—where it is impossible for a person to test merely on a reasonable expectation. In other words, "reasonable expectation" is not enough to allow a person who imagines that he or she is heir to considerable expectations to make a will or to found any claims upon those expectations until they are amply realised. No moneylender or bank would advance any considerable sum merely on the assumption of "reasonable expectations."

If the right hon. and learned Gentleman insists upon these words he is putting himself in considerable danger of reversing—or, as he would think, improving—Scottish law. I am not altogether satisfied that a Socialist Lord Advocate is the proper person to seek to improve upon Scottish law as it now stands. I implore the right hon. and learned Gentleman to think again, not merely because I am opposed to experiments in Socialism, but because I do not think that even he, with his political prejudice, if he was well aware of what he was doing, would seek radically to alter the law of Scotland by the interpolation of this Amendment which includes these rather dangerous words. If the right hon. and learned Gentleman thinks again, he will realise the truth of what I say. "Reasonable expectation" is not a good enough thing to found upon or test upon in Scottish law or in any other law, so far as I understand it. Therefore, I agree with my right hon. and gallant Friend that we are here putting ourselves into serious danger.

Mr. McKinlay (Dumbartonshire)

I am not in love with the word "reasonable," but I have never seen such a wicked desire on the part of the Opposition to hand away public money easily as they have shown tonight. The contributions paid by a member of a trade union cover benefits which include legal aid. I hope that hon. Members opposite do not invite trade unions, when the Bill becomes law, to contract out of their obligations and to park all their legal cases, because of the personal means of the aggrieved person, under the provisions of this Measure. There are other organisations which include in their contributions a proportion to provide legal assistance as and when necessary. That, of course, may be an obligation from which they could contract out.

I should like to relate an experience of a superannuation fund in a trade union in the days of the generous old age pension of ten shillings per week, which was subject to a means test. The unions discovered that thrifty persons who had paid contributions to provide themselves with an extra ten shillings a week in their old age had their pension reduced shilling for shilling by what they themselves had provided. What happened was that the Woodworkers' Society stopped paying for superannuation. They did not see why they should subsidise the pension fund of the Government.

I agree that some reasonable safeguard is necessary. I hope that on another occasion the Opposition will be as elastic as they have been tonight in piling on the agony and generously handing away public funds. The Lord Advocate has done his best to accommodate the criticisms made in the Committee and I congratulate him on having listened, on one occasion at least, to the criticisms from his own side instead of from the benches opposite.

Amendment agreed to.

Lieut.-Commander Hutchison

I beg to move, in page 13, line 9, to leave out from "shall," to "House," in line 10, and to insert not come into operation unless and until approved by resolution of each. Hon. Members will recollect that when this Clause was discussed in Committee, we moved a similar Amendment substituting affirmative Resolution procedure for the annulment procedure laid down in the Bill. That Amendment was withdrawn after we had received an assurance from the Secretary of State in which he said he would have a further

look at the matter before the Report stage. We are sorry to observe that the Government did not see fit to put down any Amendment and, accordingly, we have put down this Amendment. We still feel that the regulations which may be made under Clause 12, in particular those which fall to be made under subsection (3), are of great importance and may be very far reaching. It is desirable that they should receive the assent of this House before coming into operation. We regret that the Secretary of State has not reconsidered the matter and seen fit to put down an Amendment allowing the use of affirmative procedure in this matter.

Mr. Woodburn

As promised, I looked at this very carefully and examined every item in this part of the Bill. There was nothing which would justify taking up the time of the House with an affirmative Resolution. We have recognised what the Opposition feel about this matter, and any substantial alteration would come under the affirmative Resolution procedure under Clause 1 (4, b). These are matters of less moment and matters which vary from time to time. However desirable it may be for the House to discuss important matters, it is a physical impossibility for the House to discuss every minor matter which is to be changed. If we put in the affirmative Resolution procedure it would destroy flexibility and make it more difficult to correct abuses. It would handicap the whole procedure of the Bill, and I am sure that hon. Members do not wish to put an undue handicap on it.

Commander Galbraith

We regret the decision the right hon. Gentleman has just announced. We feel this is a matter of considerable importance and one which should be pressed to a Division.

Question put, "That the words proposed to be left out stand part of the Bill."

The House divided: Ayes, 210; Noes, 72.

Division No. 163.] AYES [10.30 p.m.
Adams, Richard (Balham) Anderson, A. (Motherwell) Balfour, A.
Albu, A. H. Attewell, H. C. Benson, G.
Allen, A. C. (Bosworth) Awbery, S. S. Bing, G. H. C.
Allen, Scholefield (Crewe) Ayrton Gould, Mrs B. Binns, J.
Alpass, J. H. Bacon, Miss A. Blackburn, A. R.
Blenkinsop, A. Hudson, J. H. (Ealing, W.) Reid, T. (Swindon)
Blyton, W. R. Hughes, Hector (Aberdeen, N.) Rhodes, H.
Boardman, H. Hynd, J. B. (Attercliffe) Ridealgh, Mrs. M.
Bottomley, A. G. Irving, W. J. (Tottenham, N) Roberts, Goronwy (Caernarvonshire)
Bowden, Fig, Offr, H. W. Janner, B. Roberts, W. (Cumberland, N.)
Bowen R. Jeger, Dr. S. W. (St. Pancras, S. E.) Robertson, J. J. (Berwick)
Braddock, Mrs. E. M. (L'pl. Exch'ge) Jones, Rt. Hon. A. C. (Shipley) Robinson, Kenneth (St. Pancras, N)
Brook, D. (Halifax) Jones, D. T. (Hartlepoel) Ross, William (Kilmarnock)
Brooks, T. J. (Rothwell) Jones, J. H. (Bolton) Royle, C.
Broughton, Dr. A. D. D. Keenan, W. Scollan, T.
Brown, T. J. (Ince) Kenyon, C. Shackleton, E. A. A.
Burden, T. W. Kinley, J. Sharp, Granville
Burke, W. A. Lang, G. Shawcross, C. N. (Widness)
Callaghan, James Lee, F. (Hulme) Silkin, Rt. Hon. L.
Carmichael, James Lewis, A. W. J. (Upton) Silverman, J. (Erdington)
Champion, A. J. Lewis, T. (Southampton) Simmons, C. J.
Cocks, F. S. Lindgren, G. S. Skeffington, A. M.
Collick, P. Lipton, Lt.-Col. M. Smith, C. (Colchester)
Collins, V. J. Longden, F. Smith, S. H. (Hull, S. W.)
Colman, Miss G. M. Lyne, A. W. Snow, J. W.
Cook, T. F. McAdam, W. Solley, L. J.
Cooper, G. McAllister, G. Sorensen, R. W.
Corlett, Dr. J. McEntee, V. La T. Sparks, J. A.
Cove W. G. McGhee, H. G. Steele, T.
Daggar, G. Mack, J. D. Stewart, Michael (Fulham, E.)
Davies, Edward (Burslem) McKay, J. (Wallsend) Strauss, Rt. Hon. G. R. (Lambeth)
Deer, G. Mackay, R. W. G. (Hull, N. W.) Stubbs, A. E.
Delargy, H. J. McKinlay, A. S. Sylvester, G. O.
Diamond, J. Maclean, N. (Govan) Taylor, H. B. (Mansfield)
Dobbie, W. McLeavy, F. Taylor, R. J. (Morpeth)
Donovan, T. MacMillan, M. K. (Western Isles) Thomas, D. E. (Aberdare)
Dugdale, J. (W. Bromwich) MacPherson, Malcolm (Stirling) Thomas, George (Cardiff)
Ede, Rt. Hon. J. C. Mainwaring, W. H. Thomas, I. O. (Wrekin)
Edwards, Rt. Hon. N. (Caerphilly) Mallalieu, E. L. (Brigg) Thomas, John R. (Dover)
Evans, John (Ogmore) Mallalieu, J. P. W. (Huddersfield) Timmons, J.
Evans, S. N. (Wednesbury) Mann, Mrs. J. Titterington, M. F.
Ewart, R. Manning, Mrs. L. (Epping) Tomlinson, Rt. Hon. G.
Fairhurst, F. Medland, H. M. Ungoed-Thomas, L.
Farthing, W. J. Messer, F. Usborne, Henry
Fernyhough, E. Middleton, Mrs. L. Wallace, G. D. (Chislehurst)
Field, Capt, W. J. Mitchison, G. R. Wallace, H. W. (Walthamstow, E.)
Fletcher, E. G. M. (Islington, E.) Moody, A. S. Watkins, T. E.
Forman, J. C. Morley, R. Webb, M. (Bradford, C.)
Gaitskell, Rt. Hon. H. T. N. Morris, Lt.-Col. H. (Sheffield, C.) Weitzman, D.
Gallacher, W. Morrison, Rt. Hon. H. (Lewisham, E.) Wells, W. T. (Walsall)
Ganley, Mrs C. S. Murray, J. D. West, D. G.
Gibbins, J. Natty, W. Wheatley, Rt. Hon John (Edin'gh E)
Gilzean, A. Neal, H. (Claycross) White, H. (Derbyshire, N. E.)
Glanville, J. E. (Consett) Noel-Baker, Capt. F. E. (Brentford) Whiteley, Rt. Hon W.
Gooch, E. C. O'Brien, T. Wilcock, Group-Capt. C. A. B.
Grierson, E. Oldfield, W. H. Witley, F. T. (Sunderland)
Griffiths, D. (Rother Valley) Paling, Will T. (Dewsbury) Williams, D. J. (Neath)
Hale, Leslie Palmer, A. M. F. Williams, J. L. (Kelvingrove)
Hall, Rt. Hon. Glenvil Parker, J. Williams, Ronald (Wigan)
Hamilton, Lieut.-Col. R. Parkin, B. T. Williams, W. T. (Hammersmith, S.)
Hardy, E. A. Paton, Mrs. F. (Rushcliffe) Williams, W. R. (Heston)
Henderson, Rt. Hn. A. (Kingswinford) Paton, J. (Norwich) Willis, E.
Henderson, Joseph (Ardwick) Pearson, A. Wills, Mrs. E. A.
Herbison, Miss M. Porter, E. (Warrington) Wise, Major F. J.
Hewitson, Capt. M. Pritt, D. N. Woodburn, Rt. Hon. A.
Hobson, C. R. Proctor, W. T. Woods, G. S.
Holmes, H. E. (Hemsworth) Pryde, D. J. Yates, V. F.
Horabin, T. L. Pursey, Comdr. H. Young, Sir R. (Newton)
Houghton, A. L. H. D. (Sowerby) Randall, H. E.
Hubbard, T. Rankin, J. Mr. Popplewell and Mr. Hannan.
Agnew, Cmdr. P. G. Drewe, C. Lloyd, Maj. Guy (Renfrew, E.)
Amory, D. Heathcoat Dugdale, Maj. Sir T. (Richmond) Lloyd, Selwyn (Wirral)
Astor, Hon. M. Duthie, W. S. Lucas, Major Sir J.
Baldwin, A. E. Elliot, Lieut.-Col. Rt. Hon. Walter McFarlane, C. S.
Beamish, Maj. T. V. H. Foster, J. G. (Northwich) Mackeson, Brig. H. R.
Bower, N. Fyfe, Rt. Hon. Sir D. P. M. McKie, J. H. (Galloway)
Boyd-Carpenter, J. A. Gage, C. Macmillan, Rt. Hon. Harold (Bromley)
Bromley-Davenport, Lt-Col. W. Galbraith, Cmdr. T. D. (Pollok) Macpherson, N. (Dumfries)
Channon, H. Galbraith, T. G. D. (Hillhead) Maitland, Comdr. J. W.
Cooper-Key, E. M. Henderson, John (Cathcart) Manningham-Buller, R. E.
Crookshank, Capt. Rt. Hon. H. F. C. Hollis, M. C. Marshall, D. (Bodmin)
Crosthwaite-Eyre, Col. O. E. Hutchison, Lt-Cdr. Clark (Edin'gh, W.) Maude, J. C.
Crowder, Capt, John E. Lambert, Hon. G. Molson, A. H. E.
Digby, Simon Wingfield Langford-Holt, J. Neven-Spence, Sir B.
Dodds-Parker, A. D. Legge-Bourke, Maj. E. A. H. Nield, B. (Chester)
Noble, Comdr A. H. P. Studholme, H. G. Ward, Hon. C. R.
O'Neill, Rt. Hon. Sir H. Sutcliffe, H. Webbe, Sir H. (Abbey)
Raikes, H. V. Thomas, Ivor (Keighley) White, Sir D. (Fareham)
Roberts, H. (Handsworth) Thorneycroft, G. E. P. (Monmouth) Williams, C. (Torquay)
Robinson, Roland (Blackpool, S.) Thornton-Kemsley, C. N. Williams, Gerald (Tonbridge)
Ropner, Col. L. Turton, R. H. Willoughby de Eresby, Lord
Sanderson, Sir F. Tweedsmuir, Lady Young, Sir A. S. L. (Partick)
Spearman, A. C. M. Vane, W. M. F.
Stoddart-Scott, Col. M. Wakefield, Sir W. W. TELLERS FOR THE NOES:
Stuart, Rt. Hon J. (Moray) Walker-Smith, D. Major Conant and
Colonel Wheatley.

Question put, and agreed to.