§ 12 noon.
§ Sir J. Hobson
I beg to move, in page 4, line 23, after 'barristers', to insert'being members of the General Council of the Bar'.It would also be for the convenience of the House if we discussed with this, the next Amendment, in line 24, at end insert'of whom one shall be a member of the Council of the Law Society and the other a member of the Law Society and also of a local law society'.Clause 7 deals with the constitution of the rule-making body, which will in future make rules on all matters and in all matrimonial causes and proceedings. The purpose of the Amendment is to provide that the four members of that body who are to be drawn from the two branches of the profession should come from the governing bodies of the profession, either the General Council of the Bar or the Council of the Law Society, with a further provision that one of the two members of the Council of the Law Society should be a member of a local law society—in other words, should come not from London but from the Provinces. The Amendment has the support of both the General Council of 1769 the Bar and the Council of the Law Society. In those circumstances, as, in Committee, the Attorney-General promised to consult both of them, I hope that he will confirm what I have said and will be inclined to accept the proposal.
I know that it is the view of some of his hon. Friends that a diamond drill is necessary to get the Government to move in any direction. Perhaps without a diamond drill, but with sensible arguments and gentle persuasion, we shall get the Government to think that on the whole this is not a very extensive Amendment but is one of interest to the profession which might be accepted.
The rules made by the rule-making body will in future govern the procedure relating to divorce not only in the county courts but also in all cases transferred to the High Court. It will deal not only with petitions for dissolution but with all other matters in the divorce jurisdiction, and it will make rules in relation to very important matters ancillary to the dissolution of marriage—custody, costs and, in particular, maintenance and alimony, and all the other matters which create a problem on the break-up of a marriage. It is, therefore, an important jurisdiction. Any orders which it makes are subject to annulment by Resolution of either House of Parliament.
To that extent, the constitution of the Committee is not in dispute. The only point under discussion—having already agreed that there should be two members of the Bar and two solicitors—is whether it would be advantageous for those two members of the Bar to be on the Bar Council and for those two solicitors to be members of the Council of the Law Society. It would be useful to link the governing bodies of the two professions to the rule-making body. The Amendments are in the form of Section 99(4) of the Judicature Act, 1925, which sets up the rule-making committee for the rules of the Supreme Court, which makes rules in the Queen's Bench Division and for other jurisdictions. It therefore brings this rule-making body in divorce jurisdiction into line with the body which makes rules for the Supreme Court in this respect. There are one or two minor differences, but it makes the two bodies equal and the same in their representation of the two branches of the 1770 profession, with the same qualifications and limitations. Since the Amendment has the fairly general support of the profession, I hope that it will be acceptable to the Government and the House.
§ The Attorney-General
It might be convenient for me to inform the House that, without the uncomfortable exercise of the application of a diamond drill, the Government are disposed, in view of the strong representations which have been made by the professional bodies concerned—the General Council of the Bar and the Law Society—to accept the Amendment.
I ought to explain why there was some reluctance about doing so. It arose not from any lack of confidence in the members of those bodies, and the intention of the Lord Chancellor in fact would have been to consult them about the representatives and who should serve on the Rules Committee. But the fear was that the work of the Committee might be impeded if, in the course of the lengthy task of redrafting some rules or some consolidation process—in the mid-stream of that work—two representatives of a Committee of 10 had to be changed, because that could delay matters until the new members or member had played themselves or himself in. However, it is appreciated that the term during which members of the professional bodies serve is fairly substantial. Moreover, I have no doubt that the difficulties of the Rules Committee will be borne in mind when changes are contemplated.
In the circumstances, therefore, and in view of the feelings of the professional bodies about the matter and the fact that any interference with the work of the Rules Committee would appear, on reflection, to be only minimal, I am disposed to accept the Amendment.
§ Sir J. Hobson
May I exercise my right of reply only to say how grateful we are to the Attorney-General, the Lord Chancellor and the Government? I know that both branches of the profession will also be grateful.
§ Amendment agreed to.
Further Amendment made: In page 4, line 24, at end insert:
'of whom one shall be a member of the Council of the Law Society and the other a member of the Law Society and also of a local law society'.—[Sir J. Hobson.]
§ Motion made and Question proposed, That the Bill be now read the Third time.
§ 12.7 p.m.
§ Mr. Oakes
Although I welcome the Bill, how little have we progressed and what little have we done? We have spent some hours—valuable, precious hours—in the Chamber, we have spent two mornings in Committee, and we have spent the best part of an hour in the Chamber today. But what have we done in the Bill? We have changed the colour of judges' robes from red to black and, flowing from that change of colour, we have permitted solicitors to appear in undefended divorce cases and have slightly cheapened the cost to the Legal Aid Fund.
But it is a matter of regret to me that we have spent that time and yet have done nothing whatever to deal with the tangled mass of incoherence, injustice and inhumanity which we have in our divorce laws. I sincerely hope that during the next Session of Parliament, if my hon. Friend the Member for Pontypool (Mr. Abse), who has done so much in this matter in previous Parliaments, has the opportunity, the House will be able to do something to help those people who desperately need help and who need saving from the archaic practices which we have in our divorce courts at the moment.
§ 12.9 p.m.
§ Mr. Leo Abse (Pontypool)
I wish that I could congratulate the Government on a Bill of divorce reform. It must have become evident through all the proceedings of the Bill that there was and remains an opinion that the Bill as constituted is an inglorious incursion into law reform, a Bill clearly lagging behind the demonstrable need for change and a Bill which in no way meets so many of the suggestions which have so clearly and logically been made by the Law Commission.
The Bill is a disappointment to those thousands of men and women who are living in permanent cohabitative union and who are unable to obtain a divorce because of the anachronisms within the present law or to regularise their relationships and the position of their children. It is sad that a Bill of this kind should come from a Lord Chancellor and an 1772 Attorney-General of whom everybody in the profession and outside had such high hopes that they would initiate genuine, radical divorce law reform. The Measure is also an irritant to the Bar, the members of which feel that some cheese-sparing finance has been indulged in and that they have been the victims of it.
The Bill is also an affront to solicitors. Solicitors feel extremely deeply on this issue and this feeling is clearly held by a responsible body of opinion inside the Law Society. The dust of former Governments is obviously on the Measure and it is clear that the Bill will require solicitors to take such fees that almost inevitably many of them will not wish to participate any longer in the Legal Aid Scheme. It is equally clear that those who will participate in it will be challenged about the quality and character of their work because of the requirement that they should do their work for such low fees.
The Attorney-General suggested in Committee that I was exaggerating the differences between the view held by the Law Society and solicitors in this matter and that held by the Lord Chancellor. My right hon. and learned Friend suggested that the average fee paid to solicitors conducting cases would be £59, including advocacy, and he went on to suggest that there was little difference between that figure and the average of the Law Society's proposal of £65. But he must know—because the Law Society has told him so—that these averages are artificial and do not bear close comparison.
The majority of divorce petitions are based on adultery or desertion. For example, of the 42,070 petitions filed in 1965, the number based on adultery or desertion was 31,064. These cases will, if these rigid proposals go through, attract the minimum of the Law Society's figures; so that a fairer comparison would be between £55 and the Law Society's proposal of £63. This makes a difference between the Lord Chancellor's proposal and the Law Society's proposal of £8 per case for approximately three quarters of undefended petitions.
I hope that even at this eleventh hour the Lord Chancellor, with the encouragement of the Attorney-General—bearing in mind the opinion that has been expressed 1773 in Committee and today by hon. Members—will reconsider these figures. I am informed that there is grave danger in the present situation that the figures of these fixed costs will be prescribed by the Rules Committee and will not be figures agreed between the Lord Chancellor and the Council of the Law Society. That is a grave and serious step to take.
The Law Society is a responsible body. It understands and recognises the need for stringent economy to be observed in all aspects of the Legal Aid Fund, but it is lamentable that we should have reached the stage between the Lord Chancellor and the Law Society when the Society feels so strongly on this issue that it is today quite adamant in saying that it will not accept figures which are unfair and which could lead to a deterioration in the quality of the work which its members are being asked to undertake.
My hon. Friend the Member for Bolton, West (Mr. Oakes) expressed the hope that there will come a time, ere long, when we shall have radical divorce reform. Such reform will require the full co-operation of solicitors; and if it leads to a rationalisation of work, then I have no doubt that they will be prepared to co-operate because they do not ask to be paid for work which is not done but for work which they are required to do by the law of the land.
It is unfortunate that, without changing the present law to any radical degree, this heavy burden is being imposed on solicitors in a way which leads one to the conclusion that the legislature is dodging its task of changing the law and is seeking to get cheap divorce on the backs of the solicitors' profession. It would undoubtedly have more persuasiveness if the Bill contained provisions which consistently and logically led to a reduction of costs. Instead, this proposal is full of anomalies. Why does the Bill say that short defended divorces can no longer be taken in the county court? This work could well be done by solicitors; and if there were a serious intention to reduce costs, then there would be no attempt—and an attempt is being made here—to withdraw these short defended cases which have been very well conducted by the county court judges. No attempt would have been made to withdraw these cases from their jurisdiction.
1774 Moreover, it would be more persuasive if, accompanied by these changes, there was a real attack on some of the restrictive practices which are now operating. It is most unfortunate that in a Bill in which it is being urged that we are economising and in which, it is said, the aim is to assist the taxpayer, the Attorney-General should have taken up such an entrenched position over the question of agency work by solicitors.
Those who recently heard the Prime Minister questioned on television by a group of eminent industrialists and publicists were impressed by my right hon. Friend's determination to see that restrictive practices, wherever they exist, are ended. How can a reforming Lord Chancellor and Attorney-General justify a move which will mean increased costs and which will prevent one solicitor from handing a case over to another at a time when the county courts are being opened as a matter of deliberate policy to all solicitors? This is something beyond my comprehension.
The Attorney-General should beware lest the belief should exist that this is a cynical Bill presented cynically. Some of the arguments that have been deployed to defend this restrictive practice and to justify the miserable amounts that are to be paid to solicitors are not only weak but border on cynicism. It is sad that we should have an estranged solicitors' profession as a result of a Bill which my hon. Friend the Member for Bolton, West objectively indicated to be a grave disappointment.
There has been long delay in bringing about divorce law reform. This is no stop-gap Measure. It is irrelevant, puny and only exacerbates feelings on both sides of the profession. It is not worthy of the great skill and ability which we know is possessed by the Lord Chancellor, his Department and the Attorney-General.
§ 12.20 p.m.
§ The Attorney-General
I am sorry that my hon. Friend the Member for Pontypool (Mr. Abse) has spoken in such a spirit and manner. He must not think that those who disagree with him are necessarily cynics, or that the Bill is presented in a cynical fashion. It is a modest Bill, to deal with a practical situation. It is a modest piece of law reform, 1775 rationalising the existing position and giving it reality, but it has the merit, unique in a measure of law reform, that it also helps the taxpayer, which is a very rare combination of events.
No great claims are made for the Bill as a major piece of reform. It is abundantly clear on all sides that a major change in the law of divorce is now crying out to be made. My noble Friend the Lord Chancellor has here been giving the lead for a very long time, and my hon. Friend must not arrogate to himself a monopoly of virtue either in this or any other field. His recent success, upon which I have already congratulated him, must not be allowed to go to his head. Many others of us are actively anxious and concerned about problems of divorce law reform, which now appear to be reaching a stage of solution where a major step forward can be taken. There is nothing in the Bill to prejudice the outcome of a major programme of divorce law reform.
As to the restrictive practices that have been referred to, the Monopolies Commission is now expressly charged with investigations into restrictive practices in the professions, including the Bar and the solicitor profession—
§ The Attorney-General
I am coming to the point that I think my hon. Friend wishes to make.
It is true that the specific matter of agency is dealt with in the County Courts Acts and will, therefore, not be expressly within the terms of reference of the Monopolies Commission. Nevertheless, the Commission will be looking at the professions as a whole, and my noble Friend feels that the effect of what my hon. Friend has in mind might seriously alter the balance between the two professions, and that if there were to be a large extension of solicitor agents doing the work in the courts it would affect quite fundamentally the relationship of the two professions. It is better to see the outcome of the Monopolies Commission's inquiry before a step forward is taken in this direction. Furthermore, it is felt quite wrong that the isolated question of 1776 agency in divorce matters should be dealt with as a piecemeal matter in this Bill.
I make no apology whatsoever for this Measure. It is useful and not only recognises the reality of the situation that has been going on in the courts, but saves the taxpayers' money.
Fees have been discussed by my noble Friend and the professions, and though it is quite true that the Law Society has not yet accepted his suggested figures, during long discussions improvements in the scales and in the remuneration have been offered by my noble Friend. I have already indicated that his proposals fairly remunerate the solicitor for the important and valuable work he will be expected to do. I venture to say the same about the suggestions that have been made to the Bar. Discussions with the Bar will continue.
The ultimate decision in this matter will be for the Rules Committee, upon which the professions will be represented. The House has this morning ensured that those representatives on the Rules Committee will be nominated by the professional bodies themselves, so that there will be built into the Committee having the responsibility in this matter direct representatives of the professions, who will no doubt not be lacking in the wish responsibly to press what they think are fair claims.
But the fact must be faced that the cost of legal aid, essential as I think legal aid to be in our contemporary society, has mounted enormously during recent years and is becoming a very heavy burden on the taxpayer. If that situation were to continue it might well undermine public confidence in the legal aid system itself, and it would indeed be unhappy if the two professions were to kill the goose that has laid so many golden eggs.
I do not for one moment say anything in criticism of the scheme—I am one of its most enthusiastic advocates—but the time had come to face the realities of the financial position. Something had to be done to check the mounting cost. This Bill will make a modest contribution in that respect. It is estimated that if all goes well it will save abut £½ million. That is not a negligible sum—we could build a couple of schools for the amount.
1777 I agree that the remuneration for this important work should be reasonable, but I invite, indeed, I beg the professions not to heed the kind of language we have just heard. I should hate to accuse my hon. Friend of cynicism when he deals with solicitors' fees in this context—I am sure that his motivation is entirely publicspirited—but I invite the two professions to consider that some sacrifice might have to be made. I invite them to recollect the time, not so long ago, when this sort of work was done for nothing by the professions. That was wrong—indeed, it was intolerable.
But we have now reached a stage when millions of £s are going to the professions for this work, and when the matter is now being reassessed in a period when restraint and sacrifices are being called for all round from the ordinary working man it is right that the professions should themselves face the fact that they must play their part. I am sure that they will do so, and do so willingly—and all the more willingly after the concessions that have been made to both branches in the course of our consideration of the Bill.
§ Question put and agreed to.
§ Bill accordingly read the Third time and passed.