§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Kaberry.]
§ 10.11 p.m.
§ Mr. Barnett Janner (Leicester, North-West)
I venture to suggest that, in spite of the importance of the debate which has taken place earlier, the subject which I wish to raise for the consideration of the House this evening is also of great importance and should not be overshadowed by the earlier debate. It is of the utmost importance that those who are entitled to legal remedies shall not be deprived of the opportunity of exercising their rights and of obtaining a just result.
I have always urged in the House and elsewhere that the cause of the person of humble means must not be allowed to go by default because of his inability to get proper legal advice or assistance. It was recognised, when the Legal Aid and Advice Act, 1949, was passed, that such 2184 was the case and that there was an obligation to help needy litigants who have a reasonable case.
Under that Act conditions were laid down requiring the establishment of a proper prima facie claim or defence on the part of the person who applied for legal aid. It is, therefore, only in those cases in which a competent lawyer has given his opinion that such a prima facie case is established that legal assistance is provided.
Under Section 4 (6) of the 1949 Act, to which I have referred, the National Assistance Board is responsible for operating the means test which has been laid down by the Act. It has to take into consideration the capital and income of the applicant for aid. It is only after the Assistance Board has assessed the disposable capital and income of the applicant that a legal aid certificate is granted to him. The National Assistance Board is bound by Regulations to take into consideration the total income and expenditure of the applicant and his wife in calculating his disposable capital and income.
As a result of this calculation, it has become clear that under the conditions which are laid down in many cases where the applications have been acceded to and a certificate granted that it is absolutely impossible for the applicant to proceed with his case under the legal aid scheme. In the course of my professional experience I have come across cases where applicants had been called upon to agree to pay very substantial contributions towards the cost.
Often they find it impossible to do this, and in some cases they have had to abandon their applications for legal assistance and to proceed as best they can without it, or not proceed at all. May I give an illustration of one case? An elderly woman whose husband earns about £6 a week, who has no disposable capital at all, was called upon to contribute £51 at the rate of £4 5s. a month towards the 2185 cost of an appeal which had been made against a decision in her favour in the county court.
I would ask, therefore, that the rules relating to disposable income and disposable capital be reconsidered by the Government with a view to a much smaller call for contributions being made upon the applicant.
§ The Solicitor-General (Sir Harry Hylton-Foster)
I do not want to interrupt the hon. Member, and I want to give him as much information as I can. But it is fair to indicate that these rules have statutory authority and I shall be necessarily limited in my reply, if he asks me to change the rules.
§ Mr. Deputy-Speaker (Sir Charles MacAndrew)
If the hon. Member for Leicester, North-West (Mr. Janner) is asking for a change in the law, he is out of order on the Adjournment.
§ Mr. Janner
I appreciate that, but I think that the hon. and learned Gentleman will also consider the Regulations in the context of the Act, and if he does he will find that there are ways and means by which he can improve the position. I am sure he would want to create a state of affairs which would enable an applicant to proceed with his case, and that he will do all he possibly can with that end in view.
It is true that a large number of people have, in fact, availed themselves of the benefits of the Act. I think the best way in which I can illustrate the complaints I have to make is to refer to what an authoritative body, which has been given the duty of dealing with the Act, has to say in view of its experience in the course of the last four years. Under Section 8 of the Act, the responsibility for making reports is given to the Law Society, which is also responsible for seeing that legal aid and advice are available as required by Part I of the Act, and generally to administer that part of the Act.
The Law Society has issued four Reports on the operations and finance of Part I of the Act, and the Advisory Committee set up by the Lord Chancellor in accordance with Section 13 of the Act has commented upon and offered recommendations on these Reports from which I should like to quote for the benefit of the House and for the full consideration of the Solicitor-General.
2186 The Third Report was published in the early part of 1954 or late in 1953, and it says:In our two previous Reports we strongly urged your Lordship to bring into force those parts of the Act which make up the Legal Advice Scheme and we set out at some length our reasons for recommending that course. We consider that the present truncated Scheme can never be satisfactory while it remains in isolation and for that reason we would welcome any extension of the scope of the Act, whether to provide for Advice or Legal Aid in the County Court or the Magistrates' Court. For the reasons we have already given we are still of the view that first priority should be given to the Legal Advice Scheme. We wish to reiterate that the position of those who require legal advice is worse now"—I emphasise this—than it was when the Rushcliffe Committee reported in 1945, and it is steadily deteriorating. The enactment of the Legal Aid and Advice Act, 1949, unexpectedly followed by the prolonged failure to implement its sections relating to Legal Advice, has indeed aggravated the position.Many of those who, by their services and contributions, maintained the legal advice centres existing before 1949, have ceased to help, in the reasonable belief that advice was about to be provided under the Act. The admirable organisations which still render this important service have no security of tenure and are financially living from hand to mouth so far as legal advice is concerned. We earnestly hope that those Local Authorities which have continued to subsidise these organisations will still do so and that more Local Authorities will make grants. We venture to suggest that consideration should be given to the possibility of making grants from Government funds to legal advice centres …This advice was not taken by the Government, and the Fourth Report states:Since we last reported our views reiterating that the Legal Advice Scheme should be brought into force as soon as possible, the Landlord and Tenant Act and the Housing Repairs and Rents Act have been passed.I pause here for a moment. These Acts affect a large number of people in this country. These people are in need of immediate advice, because if they do not have it they will find themselves in the unfortunate position of having to pay higher rentals for their homes. In many cases these rentals will be over and above what the courts consider as reasonable for, say, flats of a similar size in the same building.
That is not quoting an isolated case, because there are many such illustrations throughout the country in respect of flats. In many flats in the same house 2187 the tenants have been put in the position of being compelled, if the landlord chooses to enforce it—and in many cases he does—to pay as much as 30 per cent. more than their neighbours when the courts say that is not reasonable. It is due to the fact that they have not had an opportunity to consult any solicitor about it but have accepted the position outlined in notices presented to them by the landlords who have not complied with the requirements of the law.
To continue my quotation:Both these Acts involve the public in legal matters of the greatest complexity, and failure to appreciate the provisions of the Acts may have the most serious consequences. As a result of the Acts, legal proceedings will frequently be brought in the county court in which many parties will be unable to afford legal representation in matters in which it will be almost impossible for the litigant to do justice to his case in person. In these circumstances we cannot but think that the Government must be giving every consideration to the question whether they can continue to deny the facilities of legal advice and legal aid in the county court to the poorer class of litigants. We would add whatever weight our views may possess to the growing volume of opinion that these facilities should be made available without further delay. We are more convinced than ever that the provisions of legal advice, already authorised by the Legal Aid and Advice Act, 1949, is urgently required.All the eminent people who have been asked to advise and to recommend in respect of the provisions of these Acts have made that point. It is not only their opinion. It is the opinion of practically every lawyer who has had anything to do with the Acts. It is the opinion of the legal aid committees. That is what is happening today, as the hon. and learned Gentleman no doubt is aware, and it cannot be denied. It is an injustice to men and women who are entitled to have their cases dealt with properly because they are just as important as any other cases taken in the High Court or any other court.
I ask first that legal advice should be given which would mean a saving of a considerable sum of money. Were persons properly advised, they would know when they should not enter into litigation as well as when they should. Knowing that such advice has been given, the opposite party would in many cases undoubtedly refrain from taking proceedings. It is essential that this aid should 2188 be given at once. The county courts and the magistrates' courts deal with the lives of many people. Today we have debated life and death, but this assistance means near life and death to thousands of people in this country. Their homes, their matrimonial affairs, their domestic affairs all come to the county courts and within the civil sections of the magistrates' courts and they are without advice essential to protect them.
I know that one of my hon. Friends wishes to speak on this subject before the hon. and learned Gentleman replies. Again, I assure the hon. and learned Gentleman that this is a matter of considerable importance. I would also ask him to consider what happens when a person who has been successful in the county court is appealed against in the High Court. First, he has this trouble with regard to the assessment of the amount which he has to contribute. If he is successful in the court of appeal his opponent can still take the case to the House of Lords, if permission is given. In that case, the poor litigant, who was successful in the county court and in the court of appeal, is in the position of not receiving any assistance in presenting his case before the House of Lords.
I would refer the hon. and learned Member to what his right hon. and learned Friend the Attorney-General said over three months ago. He said:I hope … that we shall not have to wait so very much longer before we concede the full recommendations of the Rushcliffe Committee, embodied as they were, in the 1949 Act."—[OFFICIAL REPORT, 26th October, 1954; Vol. 531, c. 1898.]It is well over three months since those words were spoken. I venture to hope that, after what I have said tonight, I shall receive an assurance from the Government that relief will be given. They have no longer any excuse.
No doubt the hon. and learned Gentleman will have a conflict with the Treasury, but let him ask the Chancellor of the Exchequer to remember what he has said time after time in this House—that the country's economy is now flourishing. The Chancellor can no longer plead that the million pounds needed to mete out justice to the people concerned is too much. If an attempt is made to prevent the hon. and learned Gentleman doing the right thing, he can put forward a convincing argument 2189 against the Treasury. I hope that he will consider the suggestions which I have put forward.
§ 10.28 p.m.
§ Lieut. - Colonel Marcus Lipton (Brixton)
I urge as strongly and as briefly as I can the need to introduce the advice part of the legal aid scheme at the earliest possible moment. It will save money, because it will obviate much unnecessary litigation which is now being undertaken through the lack of suitable advice. It so happens that the Lambeth Borough Council has been trying to carry on a legal advice centre. Unfortunately, the Ministry of Housing and Local Government has ruled that any expenditure by the local authority for that purpose is illegal and cannot be allowed any longer.
Realising the danger to one or two very worthy institutions in the London area which are providing legal advice, the London County Council has been giving subventions, and will continue to do so for another two or three years in order that such useful organisations as Cambridge House, in south London, may continue their very much appreciated legal advice facilities.
I very much hope that the Solicitor-General will use his good offices to ensure that the advice part of the scheme is put into effect at the earliest possible moment. It will cost a little more money, but it will save a certain amount and to that extent a strong case may be made out. I hope that the Solicitor-General will be able to give us a sympathetic assurance tonight.
§ 10.30 p.m.
§ The Solicitor-General (Sir Harry Hylton-Foster)
The hon. Member for Leicester, North-West (Mr. Janner) knows that I am, and would of necessity be, sympathetic. I hope to satisfy him that we are doing all which reasonably could be hoped for in the direction of getting on with the implementation of this Act. I am not sure, because of the din which succeeded our chief debate today, that I have grasped every single word that he was so courteously directing my way, but if I did not, and if I fail to deal with some matters with which I should deal. I hope that he will be good enough to drop me a hint.
I will deal, first, with what is being done, because it is the extension of legal 2190 aid to the county court which has a direct bearing on what I shall have to say about legal advice and on the question of contributions. As the hon. Gentleman knows, it is now the intention to extend legal aid to the county court without any possible avoidable delay. I want to say, because there has been some confusion in the Press about it, that it is not only the county court, but certain local courts, and so that no misunderstanding may remain about this I would point out that they are the Chancery Court of the County Palatine of Durham, the Mayor's and City of London Court, the Liverpool Court of Passage, the Salford Hundred Court, the Bristol Tolzey Court and the Norwich Guildhall Court. That completes the extension to local courts.
§ Mr. Janner
Perhaps the hon. and learned Gentleman will be good enough to say a word about magistrates' courts.
§ The Solicitor-General
In due course I will. I am much obliged to the hon. Gentleman, but I desire to say, in regard to the county court, that we cannot extend legal aid in a flourish of magic lightning for this reason. New rules and regulations have to be drafted, and administrative arrangements made for the extension of county court jurisdiction. When that has been done provision has to be made for legal aid in county courts and the Law Society has to make arrangements about area and local committees and to rearrange its accounting and to deal with the National Assistance Board.
That is a large labour and we hope—whether it is possible or not I do not know; I am not giving any pledge—that we may have time to make legal aid available in the county court by the time the county court gets its extended jurisdiction. The hon. Gentleman will realise the difficulties because no one knows better than he that whereas in the county court one may get a summons issued and heard within 14 days—and the bulk are heard within five weeks of the issue of the summons—the fact is that the average time taken to obtain a legal aid certificate for proceedings in the High Court is seven and a half weeks, and how that timetable is to be adjusted to provide the defendant in the county court with legal aid is a matter of extreme difficulty.
2191 We are fulfilling to our utmost the pledge that there should be no undue delay in extending legal aid to the county court. That measure in itself is costly in terms both of finance and of administrative endeavour, and rearrangements have to be made by the Law Society of which the hon. Gentleman is a distinguished member. We could not place upon the Law Society or indeed upon public funds the difficulty of having at one and the same time to take not only this extended step, but the further and vastly important step of providing legal advice as opposed to legal aid.
In my belief, it would really be unreasonable in terms of cost and administration to take these two steps at once because the extension of legal aid to the county court is in itself a very large measure, as the hon. Gentleman will appreciate. The cost is not negligible. I like hearing the hon. Gentleman talking about the prosperity—I do not desire to enter into any inter-party matter—of the country and acknowledging the splendid improvement which has been made.
§ Mr. Janner
I did not say that. I said that the Chancellor ought not to make any excuse for preventing him from doing what he wants to do.
§ The Solicitor-General
I shall get into trouble if I wander into the field of my right hon. Friend the Chancellor of the Exchequer, but, speaking as one humble servant of the law to another, I would suggest that one of the reasons why we have prosperity is because we do not wander round like the hon. Gentleman, talking about the one or two million pounds which it may involve. We have to look at the pence if we want the shillings to be sound, and at the millions if we want the Budget to be sound.
I therefore think it is right to tell the hon. Gentleman—so that the public and he may know—that nobody has made any very accurate estimate about the additional cost of legal advice. However, one of his hon. Friends mentioned in the House an estimate of an additional £1 million a year. I hope, therefore, that the hon. Gentleman will think that I am being reasonable if I say that it is quite beyond proper practice to suggest that we should undertake that step simultaneously with the extension to the county court.
2192 If that is the right view, then, obviously, the Government are confronted with a matter of priorities here; and we thought it right to decide largely on the grounds that the hon. Gentleman himself was urging, that the Housing Repairs and Rents Act and the Landlord and Tenant Act, 1954, have added greatly to the difficulties of the county court litigant. He quoted the very words of the Advisory Committee Report which pointed out the difficulty that the litigant, unassisted, might have in conducting his own case in those matters. We thought the right thing to do was to give priority as between those two alternatives in expenditure and administrative arrangement to the extension to the county court. I hope to have the agreement of the hon. Gentleman in that matter as being an obviously right step.
What about the other courts? The hon. Gentleman mentioned the magistrates' courts and I understood him to be speaking about those quasi-civil matters, as we call them, which I might describe for the record as the things in paragraph 3 of Part I of the First Schedule to the Statute. The group of additional courts to which this legal aid could be extended would involve on a very tentative estimate, which is the best one can get, certainly yet another £1 million a year and yet more administrative arrangement. I am afraid, therefore, that the Government cannot at present see their way towards adding that extension in addition to the county court extension which they now undertake.
In the moments which remain, I want to say a word about this question of contributions. I respectfully agree with the hon. Gentleman that there are cases in which the contribution required is too high, and I think the Report of the Advisory Committee would confirm that. I hope that if he has in mind some special individual cases, he will be good enough to let me know about them and I will cause them to be investigated once again by the Assistance Board to see whether Something can be done to make the assessment easier.
This is not as easy as it may seem, because the more legal aid costs the less are we able to extend it, and the more we reduce the contribution the more legal aid costs. This is not a negligible factor. Perhaps I can give an instance. In the 2193 year ended 31st March last, 17, 000 persons litigated as assisted persons paying contributions and all except 1, 500 of them paid contributions of £10 or more. So it is plain, without allowing for any extension of the class of assisted litigant which might arise from the county court extension, that just letting off the contribution to the tune of an average of £10 a case means an expenditure of over £100, 000. These are large matters.
It is not easy to estimate the size of this though since the hon. Gentleman spoke to me yesterday I have tried to see if I could do so. There seemed to be 2194 two ways of looking at it. One was by taking all the written complaints that the Law Officers and the Lord Chancellor's Department and the Head Office of the National Assistance Board have received in this matter. These amount to only 31 in the year 1953. The other aspect would be—
§ The Question having been proposed after Ten o'clock and the debate having continued for half an hour, Mr. SPEAKER adjourned the House without Question put, pursuant to the Standing Order.
§ Adjourned at nineteen minutes to Eleven o'clock.