§ 3.2 p.m.
§ Read a third time.10
The Lord Chancellor moved Amendment No. 1:
Before Clause I, insert the following new clause:
§ ("Purpose of this Act.
§ The purpose of this Act is to establish a framework for the provision under Parts II, III, IV, V and VI of advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means.").
§ The noble and learned Lord said: My Lords, Amendment No. 1 is a response to an undertaking which I gave at Committee stage to try to produce in the simplest terms that could be devised a statement of the purpose of the Bill to be settled at its outset. Your Lordships will remember that I gave that undertaking in response to the amendment put down by my noble friend Lady Faithfull, the noble and learned Lord, Lord Elwyn-Jones, and the noble Lords, Lord Allen of Abbeydale and Lord McGregor of Durris. The inclusion of a purpose clause was supported by speakers from all sides of the Committee and I took note of the feeling of the Committee on that occasion. I have now brought forward my amendment in response.
§ Your Lordships will see that it is drafted in the form of a statement of the purpose of the Bill. I said at Committee that I would be unable to accept a clause which sought to impose a duty on the Lord Chancellor. I was supported in this view by several of your Lordships. If I remember correctly, I was supported by my noble and learned friend Lord Hailsham and by my noble friends Lord Campbell of Alloway, Lord Renton and Lord Morris. The noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Mishcon, seem also to have come to this view, since their amendment at Report spoke in terms of purpose rather than of duty.
§ The amendment is self-explanatory and I hope that it meets with your Lordships' approval. It contains elements of the amendments put down on this subject at Committee and Report. It sets out clearly that the Bill is about establishing a system of publicly-funded advice, assistance and representation for those who might otherwise be unable to obtain such legal services because of their means. I hope it provides the appropriate fanfare to start the Bill that many of your Lordships thought was needed.
§ With it comes the consequential amendment, No. 3. This removes what would otherwise be a repetition of parts of the new clause and thus maintains what I hope is the general elegance of the Bill. I beg to move.
Lord Mishcon moved, as an amendment to Amendment No. 1, Amendment No. 2:
Line 1, leave our ("establish a framework for the provision under Parts II, III, IV, V and VI of") and insert ("provide under Parts II, III, IV, V and VI").
§ The noble Lord said: My Lords, perhaps I may at once express the regret of my noble and learned friend Lord Elwyn-Jones that he is unable personally to move this amendment. He is at the moment sitting judicially. He has in me a very inadequate junior who is asked to present this amendment to your Lordships.
§ The noble and learned Lord, as one would expect, has been extremely gracious in regard to this 11 proposed amendment. If I may say so, the wheels were set in motion by the noble Baroness, Lady Faithfull, at Committee stage. When the wheels looked as if they needed a little oiling, the Report stage amendment was moved by my noble and learned friend.
§ As the noble and learned Lord said, it is desirable that the purpose of this Bill should be expressed. It is quite understandable that the noble and learned Lord was very careful to make it clear that to impose duties was a very dangerous thing, especially in this day and age, when the remedy of judicial review is available in order that the citizen may go to the courts and say that a duty imposed upon the Crown has not been fulfilled.
That point was taken on board. My noble and learned friend and I tried our best at Report stage to table an amendment which we hoped would escape the judicial review procedure and at the same time deal with the points that the Lord Chancellor had made at Committee stage. At col. 1202 of our proceedings at Report stage on 4th February, having looked at that amendment of ours, he said this:
I am grateful for the introduction of this matter by the noble and learned Lord, Lord Elwyn-Jones. It has proved to be a fairly difficult task but, as I stated in the letter read to your Lordships, I am hopeful that at Third Reading we shall be able to bring forward a satisfactory statement of purpose clause. I am extremely grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Mishcon, for promoting this amendment. I am glad to say that I have also been in receipt of help from other quarters, We shall endeavour to make the best possible use of all that help".
Then came the sentence which put optimism in the hearts of my noble and learned friend and myself:
I fear that I cannot accept the present proposal with complete certainty that it is 100 per cent. in accordance with what is desired by those assisting me in the drafting of the Bill. However, I assure your Lordships that it will be taken into account".
The optimism that filled our hearts at that time was that at Third Reading the noble and learned Lord would come forward with something which was 99 per cent, of what we had tabled.
§ The amendment which comes before your Lordships at Third Reading and which has just been moved by the noble and learned Lord sitting on the Woolsack is one that deserves these comments. It is differently worded from the amendment at Report stage. It carefully uses the word "purpose" and not "duty" and therefore deals with the point in regard to judicial review. For the rest of the clause, when detailing the purpose in regard to advice, assistance and representation which are publicly funded, it deals with the matter in a perfectly acceptable way.
There being no pride of ownership in the words that occur in the amendment which we moved at Report stage, that part of the proposal in this amendment of the noble and learned Lord is accepted by us with gratitude. However, our real difficulty in accepting the amendment is one that I hope your Lordships—and indeed the noble and learned Lord the Lord Chancellor—will share. It is now some 39 years since the first Legal Aid Act was passed in 1949 and we have evolved and progressed over 40 years. Instead of dealing with the history of legal aid and
with the purpose of the Act in fulfilling certain aims of legal aid as have evolved, the curious words occur:
The purpose of this Act is to establish a framework for the provision under Parts II, III, IV, V and VI of advice, assistance and representation".
We presented that framework 40 years ago. At the Committee stage, when we were dealing with the amendment, the noble Baroness, Lady Faithfull, so correctly quoted the Lord Chancellor as saying at Second Reading of the Bill:
The legal aid system in this country is one of the best in the world. The provisions in the Bill not only preserve all that is best in our legal system; they enhance it".—[Official Report, 15/12/87; col. 614.]
§ We have reached an advanced stage along our journey in regard to legal aid. To talk in terms of this Bill as though it were the very first time that builders had started the job of erecting legal aid and had merely reached the stage in the Bill of providing the framework for it seemed to us not only to be a wrong use of words but to signal something that was historically incorrect and quite undesirable.
Our amendment accepts every single sentiment and word of the Lord Chancellor in regard to this Legal Aid Bill and its purpose but asks for the omission of the words,
establish a framework",
so that the amendment, if passed, would read
The purpose of this Act is to provide under Parts II, Ill, IV, V and VI advice, assistance and representation which is publicly funded with a view to helping persons who might otherwise be unable to obtain advice, assistance or representation on account of their means".
I beg to move.
§ Baroness Faithfull
My Lords, on behalf of the noble Lords, Lord Allen of Abbeydale and Lord McGregor of Durris, I wish to thank the noble and learned Lord on the Woolsack for his amendment. It is straightforward, and will be understood by people using legal aid and organisations such as the law centres and Citizens' Advice Bureaux. It will help them realise what the Bill is for. We are grateful to have this purpose clause set out by the noble and learned Lord. I have not had time to discuss with my noble friends the alteration put forward by the noble Lord, Lord Mishcon. However, it seems to me that there is not much between the amendments. We are grateful to the noble and learned Lord the Lord Chancellor for the word "framework" and we are happy with it.
§ 3.15 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I prefer the words of the Lord Chancellor's amendment to those of the alternative. Perhaps I may say to the noble Lord, Lord Mishcon, that his historical point is a bad one because it affects his own amendment equally. The provision of legal aid is 40 years old and has gradually advanced during the years. To pretend that the purpose of the Bill is to provide something which does not already exist is historically far more inaccurate than any criticism that could he levelled at the words of the Lord Chancellor.
Quite apart from that it is inaccurate because the purpose of the Bill is in fact to provide a framework. It sets up the Legal Aid Board which is structure. It 13 provides for committees and for various kinds of other structure. It gives to parliamentary subordinate legislation, either by way of affirmative or negative resolution, an enormous part, as has been pointed out repeatedly during the course of our debates. Again, structure. This is a Bill for the structure of legal aid. I prefer the word "framework" to be in the Bill.
§ Lord Simon of Glaisdale
My Lords, I too should like to thank my noble and learned friend for a valuable purpose clause. Like my noble and learned friend Lord Hailsham I prefer Amendment No. 1 to Amendment No. 2 for the reasons that he gave; namely, that from the very beginning of legal aid we have relied greatly—almost preponderantly—on subordinate legislation. And so it is here. Therefore it is perfectly correct to say that the purpose is to establish a framework, a framework which will be fleshed out in due course when your Lordships see the regulations.
I have noticed in certain of the remarks that have been addressed to your Lordships—notably by the noble Lord, Lord Mishcon—a certain wary attitude to the remedy of judicial review. That development is entirely salutary. This country has for many years been disgracefully behind other jurisdictions in developing an administrative law. The system of judicial review is a valuable beginning— indeed, it has now developed beyond a beginning—in which the courts can review the activities of administrative bodies. That has been welcomed in all except the very citadels of bureaucracy. As no doubt we shall be discussing judicial review later, I hope that it will not be in any way looked at askance.
§ Lord Renton
My Lords, I am grateful to my noble and learned friend the Lord Chancellor. Indeed I wonder whether I may use the word "thrilled". It was a principal recommendation of the Committee on the Preparation of Legislation, of which some years ago I had the honour to be chairman, that there should be purpose clauses. The noble and learned Lord, Lord Simon, and others have frequently pressed for purpose clauses, and this is one of the first that we have seen of a comprehensive kind. I attach great importance to the fact that it is the noble and learned Lord the Lord Chancellor himself who has had it drafted and has moved it before the House.
This purpose clause, like others, will be valuable for interpretation. When I say that, I mean that it will be especially valuable in assisting the courts. Of course it is of value to all readers of the statute as well. I wonder whether I may make a brief reference to the Lord Chancellor's second amendment. He has referred to it and so I believe it will be in order for me to do so.
He points out that Clause 1 is for purposes of interpretation; that would be the effect of his amendment. Strictly speaking—and I hope I am not being pedantic in suggesting this—the new amendment which he moved will be equally valuable for the purpose of interpretation. Therefore Amendment No. 3 might well have covered the new Clause 1 (as it would be) as well as the present Clause 1 which my noble and learned friend is amending.
14 I do not think I need add anything to the powerful arguments that have already been used by my noble and learned friends Lord Hailsham of Saint Marylebone and Lord Simon of Glaisdale, about the amendment moved by the noble Lord, Lord Mishcon. I respectfully agree with both of them.
My Lords, I should like to express another concern that I have about the amendment tabled in the name of the noble and learned Lord, Lord Elwyn-Jones, which was so ably moved by the noble Lord, Lord Mishcon. My concern is that the wording requests an Act of Parliament to do something that it cannot possibly do. The wording is:The purpose of this Act is to provide".No Act can provide those goodies which are suggested in the Long Title or indeed in the amendment of the noble and learned Lord the Lord Chancellor. It is obviously the administration of that Act and the framework under which the Act is administered that provide such matters. For that reason I believe, although I am no draftsman or lawyer, that the amendment of the noble Lords opposite would not be workable. I believe it is useful in terms of interpretation, although I think the new wording is a reiteration of the Long Title. Just as the Long Title is used by the courts in the interpretation of any Act, so this further purpose clause can likewise be used. It is for that reason that I am grateful.
§ Lord Morton of Shuna
My Lords, I am slightly puzzled by what the noble Lord, Lord Morris, has just said. I do not see the difference in English between an Act to make new provision and an Act which provides. The meaning is the same.
§ Lord Mishcon
My Lords, I seem to detect some amount of opposition to the amendment that I moved. Whether that opposition is due to extreme sensitivity or not, I am not sure. However, because I regard it as being very important, I should like to say at once that I do intend, at the end of what I have to say, to test the opinion of the House.
First, I should like to pay tribute (although I thought I had done so previously) to the noble and learned Lord who sits on the Woolsack for coming forward with this amendment at all. I say that because when the noble Baroness, Lady Faithfull, was courageous enough to move the amendment in Committee the response of the noble and learned Lord the Lord Chancellor was reflective but not entirely supportive. Therefore it shows his openness of mind, if I may say so, and that he was convinced in the course of the debates that putting a general purpose into the Bill might be a sensible thing to do.
However, he did sound, as did others in the debates, a note of caution which was a very proper one: if you impose a duty which is enforceable in our courts, then quite obviously you have to be extremely careful because of the doctrine of judicial review. Those words were not spelt out, but everybody knew what they meant. Of all the people who knew what those words meant, the noble and learned Lord, Lord 15 Hailsham of Saint Marylebone, certainly knew what they meant.
I mention this point only because of the contribution of the noble and learned Lord, Lord Simon of Glaisdale. From these Benches we have upheld, supported, encouraged and praised the remedy of judicial review. The only reason that I mentioned the remedy was in order to make it quite clear that we on this side of the House shared the care of the noble and learned Lord the Lord Chancellor in wanting to see that we did not put anything into a statute which enabled the remedy of judicial review to be applied for in circumstances that would be quite unreasonable and unfair. That is why we adopted the words "the purpose"; and, indeed, "the purpose" are the very words that start off the noble and learned Lord's amendment.
It may well be that I am extremely faulty in expressing what one wants to express in language. However, I find it difficult in the course of a debate to deal with an argument which says that it is wrong to express a purpose in words which appear to show that you are erecting a building; but that it is absolutely right to say that you are doing it as a framework. Therefore it is wrong for one to do it historically (to pretend that you are erecting a building) by virtue of the fact that 40 years ago you started it; but it is perfectly correct, in accordance with the argument, to say 40 years afterwards that you are presenting the world with a framework. I do not follow the logic of that argument. If this were merely an argument on semantics, I would take my seat and not waste your Lordships' time any further; but it is not just semantics. It gives the purpose of the Bill quite inaccurately and falsely historically to say that Parts II, III, IV and V provide a framework. That framework was supplied—and I repeat it—in the first Act which dealt with legal aid in 1949. A matter of principle is involved, and one wants the correct words to go to the other place.
I am reminded and I hope I have not been discourteous to the House—that the noble and learned Lord the Lord Chancellor has not yet replied to my amendment. He will therefore be speaking after me. If I have said anything which seemed to suggest that the noble and learned Lord had nothing more to say on the matter, then I apologise.
I merely say to the House that, subject to what the noble and learned Lord has to say in his reply and with the openness of mind that he himself has shown in regard to this matter—which may therefore surprise your Lordships in that reply in accepting the amendment—I feel I must pursue the amendment as a matter not just of historical fact but, as I have already said, of principle.
§ The Lord Chancellor
My Lords, I am sorry if I gave the noble Lord, Lord Mishcon, the feeling that I have nothing to say on the amendment. I was seeking to give a full opportunity to anyone else who had not yet taken part in the debate to speak before I responded to the noble Lord's amendment.
First, I am grateful to all of your Lordships who have spoken commending the amendment which I 16 moved. It is true to say that there are not many such purpose clauses in statutes. It is also true that my noble friend in his committee recommended this provision. I have found the recommendations of his committee from time to time to be most useful, and have sought to follow them where possible—although perhaps not always entirely to his satisfaction—but at least I have gone some way into doing so.
It is important if one has a purpose clause to make sure that it is accurate. One of the points that the noble and learned Lord, Lord Elwyn-Jones, has often made about the Bill is that it contains many powers for secondary legislation. It is only a framework. It is not all the statutory provisions that are required even to make provision for legal aid. I must say that one does not need to consider long to see that there is a distinction between providing and making provision under which something can happen. To provide legal aid is one matter; but to make provision under which it can happen is something different.
The important point is that the Bill provides a framework. It establishes as a statutory provision a framework under which legal aid in the various aspects of Parts II, III, IV, V and VI are to be provided. It recognises in the scheme the scope for subordinate legislation. Therefore, I do not claim, and the amendment does not claim, that that has happened for the first time. I am not trying to put back the clock to 1949; I am trying to say that the Bill establishes a statutory framework for legal aid. In that, it is entirely accurate. The suggestion that it is more than a framework, and that it is something that provides legal aid itself, without the necessity of any intervention by subordinate legislation, which seems to be the emphasis of the amendment moved by the noble Lord, Lord Mishcon, is in my judgment inaccurate.
I adopt the arguments to the same effect that have already been put more eloquently than I can put them. That is essentially why—I hope not with undue modesty—I prefer my amendment to that moved by the noble Lord.
§ Lord Mishcon
My Lords, my response should be courteous and short. I respect the view put to the House by the noble and learned Lord. It has not affected my view that for the reasons that I have given the amendment should be put to the opinion of the House.
§ 3.31 p.m.
§ On Question, Whether the said Amendment (No. 2), as an amendment to Amendment No. 1, shall be agreed to?
§ Their Lordships divided: Contents, 40; Not-Contents, 141.18
|DIVISION NO. 1|
|Ardwick, L||Cledwyn of Penrhos, L.|
|Birk, B||Cocks of Hartcliffe, L.|
|Bottomley, L||David, B.|
|Bruce of Donington, L.||Davies of Penrhys, L.|
|Carmichael of Kelvingrove, L.||Dean of Beswick, L.|
|Ennals, L.||Milford, L.|
|Fisher of Rednal, B.||Mishcon, L.|
|Fitt, L.||Molloy, L.|
|Gallacher, L.||Morton of Shuna, L.|
|Galpern, L.||Northfield, L.|
|Graham of Edmonton, L. [Teller.]||Ponsonby of Shulbrede, L.|
|Irving of Dartford, L.||Serota, B.|
|Jay, L.||Stewart of Fulham, L.|
|Jeger, B.||Stoddart of Swingdon, L.|
|Leatherland, L.||Taylor of Blackburn, L.|
|Listowel, E.||Turner of Camden, B.|
|Llewelyn-Davies of Hastoe, B.||Underhill, L.|
|Longford, E.||Wallace of Coslany, L.|
|McCarthy, L.||White, B.|
|McIntosh of Haringey, L.||Williams of Elvel, L.|
|Ailesbury, M.||Hesketh, L.|
|Airedale, L.||Hives, L.|
|Allen of Abbeydale, L.||Hood, V.|
|Allenby of Megiddo, V.||Hooper, B.|
|Allerton, L.||Hutchinson of Lullington, L.|
|Amherst, E.||Hylton-Foster, B.|
|Ampthill, L.||Iddeslesigh, E.|
|Arran, E.||Jessel, L.|
|Attlee, E.||Johnston of Rockport, L.|
|Auckland, L.||Joseph, L.|
|Aylestone, L.||Kaberry of Adel, L.|
|Bathurst, E.||Kearton, L.|
|Beaverbrook, L.||Kennet, L.|
|Belhaven and Stenton, L.||Killearn, L.|
|Bellwin, L.||Kilmarnock, L.|
|Beloff, L.||Kimball, L.|
|Belstead, L.||Kinnaird, L.|
|Benson, L.||Lane-Fox, B.|
|Bessborough, E.||Lauderdale, E.|
|Blake, L.||Long, V.|
|Blatch, B||Luke, L.|
|Blyth, L.||Lyell, L.|
|Bonham-Carter, L.||McGregor of Durris, L.|
|Boyd-Carpenter, L.||Mackay of Clashfern, L.|
|Brabazon of Tara, L.||Mackie of Benshie, L.|
|Brougham and Vaux, L.||Macleod of Borve, B.|
|Bruce-Gairdyne, L.||McNair, L.|
|Burton of Coventry, B.||Manton, L.|
|Caithness, E.||Margadale, L.|
|Cameron of Lochbroom, L.||Marley, L.|
|Campbell of Croy, L.||Massereene and Ferrard, V.|
|Carnegy of Lour, B.||Merrivale, L.|
|Clinton, L.||Mersey, V.|
|Coleraine, L.||Milverton, L.|
|Colnbrook, L.||Morris, L.|
|Cottesloe, L.||Mottistone, L.|
|Cowley, E.||Mountgarret, V.|
|Cullen of Ashbourne, L.||Mowbray and Stourton, L.|
|Davidson, V. [Teller.]||Munster, E.|
|Denham, L. [Teller.]||Murton of Lindisfarne, L.|
|Donaldson of Kingsbridge, L.||Nelson, E.|
|Dudley, B.||Newall, L.|
|Dundee, E.||Norrie, L.|
|Edmund-Davies, L.||Nugent of Guildford, L.|
|Effingham, E.||O'Brien of Lothbury, L.|
|Ellenborough, L.||Orkney, E.|
|Erroll of Hale, L.||Oxfuird, V.|
|Faithfull, B.||Peyton of Yeovil, L.|
|Ferrers, E.||Porritt, L.|
|Fraser of Kilmorack, L.||Raglan, L.|
|Gainford, L.||Rathcreedan, L.|
|Gardner of Parkes, B.||Reilly, L.|
|Gray of Contin, L.||Renton, L.|
|Greenway, L.||Ripon, Bp.|
|Grey, E.||Ritchie of Dundee, L.|
|Gridley, L.||Rodney, L.|
|Haddington, E.||St. Davids, V.|
|Hailsham of Saint Marylebone, L.||Saint Oswald, L.|
|Saltoun of Abernethy, Ly.|
|Halsbury, E.||Sandford, L.|
|Hanworth, V.||Seebohm, L.|
|Harris of Greenwich, L.||Selkirk, E.|
|Hayter, L.||Sempill, Ly.|
|Shaughnessy, L.||Teviot, L.|
|Simon of Glaisdale, L.||Thomas of Gwydir, L.|
|Skelmersdale, L.||Tordoff, L.|
|Stockton, E.||Trumpington, B.|
|Strange, B.||Vaux of Harrowden, L.|
|Strathcona and Mount Royal, L.||Waldegrave, E.|
|Strathspey, L.||Wynford, L.|
§ Resolved in the negative, and amendment to Amendment No. 1 disagreed to accordingly.
§ On Question, Amendment No. 1 agreed to.
§ 3.40 p.m.
§ Clause 1 [Basic definitions and other preliminary provisions]:
The Lord Chancellor moved Amendment No. 3:
Page 1, line 7, leave out from ("section") to ("of") in line 8 and insert ("has effect for the interpretation").
§ The noble and learned Lord said: My Lords, I have already spoken to this amendment. I should perhaps say one word in answer to the comment which my noble friend Lord Renton made upon it. I think it is true that all clauses in a Bill are capable of being used for interpretation. In a sense, therefore, if one is to be entirely consistent one would have to say that after every clause. But in many cases the connection of the clause with the structure of the Bill is clear. In Clause 2 of the Bill as it will now be, there is a list of words and phrases which are defined. As a consequence of the change by inserting the new clause to which your Lordships have just agreed, that would be an inelegant way of introducing Clause 2 of the Bill. We have changed it in the way proposed, and therefore I would not feel it right to alter Clause 1 in the way in which my noble friend has proposed. I beg to move.
§ Lord Renton
My Lords, of course I accept the explanation of my noble and learned friend. Indeed one could reinforce it by saying that when there are definitions in any clause it is often referred to as an interpretation clause.
§ On Question, amendment agreed to.
§ Clause 2 [The Legal Aid Board]:
The Lord Chancellor moved Amendment No. 4:
Page 3, line 10, at end insert ("other than proceedings on an appeal from the decision of a juvenile court to the High Court").
§ The noble and learned Lord said: My Lords, this amendment relates to the later government amendments on the treatment of legal aid for child care proceedings. I should perhaps indicate that with this amendment I am taking Amendments Nos. 15 to 25, 47 to 49 and 51.
§ Your Lordships will remember that under the former framework for legal aid, legal aid in child care proceedings was dealt with as being included in legal aid for criminal proceedings. We decided, in establishing this framework, that the child care provisions should be taken out and dealt with separately. We now have a part of the Bill which deals with the legal aid relating to child care proceedings.
§ In Committee the noble and learned Lord, Lord Elwyn-Jones, moved an amendment designed to 19 question whether there were some other provisions or situations dealt with under civil legal aid which should also be grouped with child care legal aid. Ours had originally only been that part of child care legal aid which had formally been dealt with along with criminal matters. I considered and said at the time that that would appear to be an improvement. But there were a lot of rather disparate situations covered in rather different ways and we needed to look into the matter fairly closely. That we have tried to do now and to make consistent arrangements for child care legal aid to be dealt with under the child care legal aid provisions.
§ However, I saw the problem that might arise if any of the proceedings that were to be moved from Part IV to Part VI of the Bill involved proceedings in the High Court or the county court. This is because neither of these has the administration to deal with the grant or refusal of legal aid and Part VI at present requires that decision to be made by the court. The only proceedings which, on examination, have turned out to fall into this category are appeals from the juvenile court to the High Court. The handling of legal aid applications in these cases will therefore rest with the legal aid administration—that is, the board. So Clause 2(4), which deals with the legal aid functions not currently carried out by the legal aid administration but which might be transferred to the board at some later stage, has to be amended.
§ Clause 2(4)(c) refers to functions relating to care proceedings under Part VI. Since, as I have said, the decisions on legal aid for appeals from the juvenile court will rest with the board from the start, the amendment will be necessary to make that clear. It is part of a group which seeks to carry out the policy which I have just endeavoured to describe fairly briefly. I beg to move.
§ Baroness Faithfull
My Lords, as an ex-children's officer and speaking also for the voluntary organisations and for the director of social services, I support the amendment.
§ The Lord Chancellor
My Lords, I am very grateful for that support. As I have said, the problem was originally highlighted by the noble and learned Lord, Lord Elwyn-Jones, in his amendment. All we have sought to do is to carry forward that thinking in detail. Therefore I am grateful that your Lordships feel we have reached the right conclusion.
§ On Question, amendment agreed to.
§ 3.45 p.m.
§ Clause 3 [Powers of the Board]:
§ The Lord Chancellor moved Amendment No. 5:
Page 4, line 30, at end insert—
("( ) The power to secure the provision of representation under Part IV by means of contracts with other persons shall only be exercisable in the classes of case prescribed in regulations.").
§ The noble and learned Lord said: My Lords, this is the first of a series of amendments which deal with 20 what is sometimes referred to as the "class action" problem, but that is not particularly accurate. I shall endeavour to show in a little more detail what I seek to deal with. Together with this amendment I shall take Amendments Nos. 8 to 10, 26 to 35, 46 and 50.
§ Following the discussion that we had at Committee stage on the question of class actions, I have been giving further thought to the problems raised generally by multi-party actions and to ways in which the Legal Aid Bill might be amended to allow publicly-funded representation to be given in different ways which would meet the problems that arise in such multi-party actions.
§ I undertook at Committee stage to consider whether some sort of contracting provision similar to that in Part II of the Bill might help here. I had intended to elaborate on this a little at Report stage, but the amendment raising that matter was not brought forward for discussion. What I am now proposing in these amendments is that the board should have the power to enter into contracts with a particular firm or firms of solicitors for them to provide representation in categories of civil proceedings specified in regulations by the Lord Chancellor. The way I see this working is that the board would identify particular groups of cases—possibly all cases relating to a particular action or perhaps a more general category—which could with advantage be dealt with in this way.
§ Perhaps I may take as the leading example the multi-party action. This could take place because there were particular issues common to all the cases involved and no likelihood of a conflict of interest. Once such a category had been identified in regulations, the board could contract with particular solicitors with a view to their providing representation, and assisted persons with a case coming within the category would be directed to those solicitors. This would involve some restriction necessarily on the freedom of choice of solicitor by individuals involved in those cases, but that is a price that I think must be paid for greater co-ordination of multi-party actions anyway in order to secure the strength of a common representation.
§ These arrangements could, if the board and the Lord Chancellor thought it appropriate, provide for special arrangements for eligibility and means testing for some or all of the group. Separate provision could also be made, by means of the power given in Clause 32(2)(f) to enable the statutory charge to be taken from the totality of the money recovered.
§ It might also be necessary to have a rather different merits test, though it could well be possible to achieve this through guidance on how the existing test is to be applied. It might well be possible, for example, to justify taking an action which had as its purpose recovering perhaps comparatively small amounts of damages for a large number of people when the cost involved for each of them taken separately would not justify proceeding with the action.
§ These are matters which will have to be considered in the light of whatever court procedures, including class actions if such a procedure is introduced, can appropriately be dealt with in this way. This is a matter I shall invite the board to keep under review.21
§ I venture to think that this approach deals with a good amount of the difficulty which presently arises and to which the noble Lord, Lord Mishcon, referred in Committee about applying legal aid in its present form to actions where one legally aided person, perhaps without a contribution, was selected as the leading case to determine a whole lot of similar cases. Under the present system all he recovers is subject to the statutory charge in respect of all the expenses and costs incurred on his behalf.
§ The amendments proposed here enable the Legal Aid Board to in effect apportion between the various parties whose cause is espoused as part of the unit the cost so that the statutory charge, even if it was operating at its full force, would operate only on the proportionate part of these costs.
§ It is worth pointing out that this proposal is not the same as that for contracting out advice and assistance. There contracted out advice and assistance under Part II will replace advice and assistance under Part III. Here the contracts will merely be a different way of providing legal aid under Part IV. For contracted out advice and assistance, things like eligibility conditions will be spelt out in the contract. Here, unless specifically changed by means of the powers in Clause 32(2)(f), the normal means and merits test would apply, as would the normal provisions on the award of costs.
§ The important point to bear in mind is that this is a variant on civil legal aid rather than a replacement for it. The essential difference is that in these cases the applicant would be directed to the solicitor under contract to the board, thus ensuring proper co-ordination of all the relevant cases.
§ There will obviously be a great deal of detailed work for the Legal Aid Board to do on the administration arrangements for the contracting system. I believe it represents a useful way forward, not only for multi-party actions, but also for civil legal aid generally where it might well be both appropriate and cost-effective to establish contractual arrangements for handling certain categories of work. For example, apart from the multi-party type of case that we have perhaps been thinking about primarily the kind of situation which the noble Lord, Lord Allen of Abbeydale, figured in relation to the development risk defence might be one that would be appropriate for treatment under this kind of provision.
§ I have endeavoured to meet the prescription that the noble Lord, Lord Mishcon, laid down in Committee. He said that he did not want the Lord Chancellor to say that he would go away and consider this, then initiate some kind of study and many years later possibly come back with something. He said that he wanted something done now.
§ When I get orders like that, if I can meet them I try to do so. It is quite plain to me from what I know about the position that it is quite out of the question for any kind of rules relating to class actions to be formulated in the timescale that the noble Lord has in mind. Therefore the best that can be done—I believe it is quite an improvement and quite a step forward—is to introduce the possibility of flexibility 22 into the legal aid arrangements, which would provide for the strength from unity which this kind of amendment provides.
§ In my judgment it is not appropriate in the Legal Aid Bill to seek to introduce procedural adjustments of a general character for the court. That is something for other legislation and for the rules of court themselves to provide. I am considering as an ancillary to that whether something should be done to consider further the idea of the class action.
§ In a sense, if this works it makes less necessary the class action concept, because in this it would be possible at least on the merits of the matter for a case to go forward that would take forward the interests of a large number of people together, whereas the class action requires in effect that a person is taking the whole of a class forward while there is only one nominal plaintiff. So it may be that the strict idea of the class action, which is I think current in the United States, might not be so necessary here if this system which I have sought to describe were to work.
§ There are further detailed amendments which seek to work out this scheme and these details are all self-explanatory as elaborations of the idea which I have explained. I beg to move.
§ 4 p.m.
§ Lord Mishcon
My Lords, my only respectful quarrel with the noble and learned Lord is that he has paraphrased precatory words into making them mandatory. I prayed him not to inquire further into this matter and so delay some kind of remedy. I would never do anything else other than that. Certainly in the light of the century which he scored against me by way of a majority on the last amendment, it is necessary for me to be extra humble.
We are grateful to the noble and learned Lord for having taken this problem very much on board and for having conveyed it into this Bill now by way of an amendment in a way which certainly goes quite a distance in dealing with a problem which we ventured to bring before your Lordships at previous stages of the Bill.
As the noble and learned Lord said, there is a grave injustice to which the Master of the Rolls drew attention very recently—I quoted him rather extensively in Committee and I shall not do so again—where one gets an action in the courts with a number of plaintiffs involved, with the same issues in regard to liability but obviously different issues in regard to damages very often, and where of necessity one selects, from the point of view of contributions to the legal aid fund and the financial burden that might fall, a plaintiff who does not in fact because of financial means become liable to make any contributions or very small ones. They are known as lead actions.
The injustice, which was emphasised in the recent pronouncement of the Master of the Rolls, is that when that plaintiff is successful the legal aid fund pounces upon any damages that might be awarded in that case in order to satisfy the costs. That poor plaintiff may well find that every penny of the damages awarded is taken in fighting the case, which 23 may have been fought on behalf of a great number of people who had expert evidence called and so on. In that context I have in mind the recent Opren case.
We brought that point to the attention of the noble and learned Lord, who bravely wrestled with the problem (if that is not a mixed metaphor) and came forward with this solution. If one looks at Amendment No. 11, it will be seen that the Law Society also tried to wrestle with the problem and deal with the perfectly just criticism of the noble and learned Lord the Lord Chancellor; namely, that trying to secure a class action within the boundaries of the Legal Aid Bill when class actions have not yet been brought into our judicial system and procedure is—to use the noble and learned Lord's phrase—putting the cart before the horse.
We considered the matter and settled on something very different from a class action. We utilised an existing procedure under Order 15, Rule 12 of the Rules of the Supreme Court, which states:Where numerous persons have the same interest in any proceedings … the proceedings may be begun and, unless the court otherwise orders, continued by or against any one or more of them as representing all except one or more of them".Taking advantage of that rule, we tried to introduce what we thought was a fairly easy procedural concept; namely, that one of Her Majesty's judges in the High Court, nominated by the Lord Chief Justice if he was not able to deal with the matter himself, would issue a certificate in an appropriate case. That certificate would result not only in what perhaps I may call a representative action being brought, subject to the directions of the court, but would also rule out the question of the statutory charge in such circumstances. We thought that that was a very good way of getting over the problem.
The amendment of the noble and learned Lord deals with the problem in rather a different way. To describe it in simple language, it provides for a contract system with a firm of solicitors, who presumably are mentioned in a specific list and who are nominated to act in that matter. The costs are kept down by those solicitors, who are presumably acting for a number of people who have similar cases, and by contract the statutory charge provisions are either varied or dealt with in some way by agreement. That agreement, of course, will be with the Legal Aid Board.
We considered that amendment and, frankly, we found certain disadvantages. From a professional point of view there are two difficulties. First, how are those solicitors to be selected? Are they to be selected by choice, by tender, or in what way? It seems to be a little undesirable, whichever way they are chosen. However, of far more importance is the fact that the proposed amendment does away with the principle of the person who is ill being able to a large extent to choose his or her general practitioner—the person who thinks he suffers from some malady in regard to the law or an injustice that he wants to put right is robbed of the opportunity to choose his own lawyer. That is the first difficulty that this amendment presents and it is one which is not presented in our amendment.
24 The second difficulty is that very often the Government themselves are concerned in such actions. Indeed, a government medical board was concerned in the Opren case. To the public the Legal Aid Board seems like a government institution. Its members are appointed by the Lord Chancellor and, as I said, it appears to be a government agency. If that government agency turns down a request of this kind, is it not somewhat inappropriate that the Legal Aid Board and not a court should make the decision?
Stemming from that argument is another. Is the Legal Aid Board, which contains as a minimum a couple of solicitors and a couple of barristers, a suitable body to look into the complicated issues that may be involved and give directions for a contract of this kind to be entered into? Is it an appropriate body to look into the issues and decide whether there is a good case and who may be the appropriate people to be involved in it? One would have thought that the court was very appropriately the tribunal to deal with very difficult matters of that kind and give appropriate directions.
The noble and learned Lord said that there was a great desire to deal with this problem in some way and to deal with it quickly. I immediately salute that sentiment and acknowledge that he has produced a partial solution—with the disadvantages that I have mentioned—which does deal with the matter quickly. In opposing the amendment one puts back a possible solution and delays it. Moreover, one takes the risk of whether the alternative procedure adopted in Amendment No. 11 will be accepted by your Lordships. Rather than run that risk I believe that the appropriate course to take, which may commend itself to the House, is not to oppose the amendment of the noble and learned Lord and in due course not to move Amendment No. 11, to which I have already spoken. Perhaps then the disadvantages that I have respectfully pointed out to the noble and learned Lord will be considered and no doubt another place can take a decision upon these matters when this Bill, as will inevitably happen, goes to that Chamber. I believe that to be the best way of dealing with the matter in order to ensure that at all events some solution emerges from the Bill as a result of a situation which nobody wants to see continue and which is unjust from the point of view of the class of cases about which we have been talking.
§ Lord Morton of Shuna
My Lords, I am sorry to take up more of your Lordships time but I do so merely in order to ask a question; namely, is it the Government's intention to make similar provisions for Scotland for these multi-party or class actions? If so, would this Bill not be the proper vehicle for that course, because in Clause 42 and Schedule 4 there are amendments proposed to the Scottish Legal Aid Act? It would appear appropriate that the two countries and the two jurisdictions should go hand in hand on this matter, as certain of these cases, such as drug cases and vaccine damage cases, have the same point on both sides of the border, and there is perhaps a waste of money if two sets of actions are undertaken.
§ Lord Renton
My Lords, as my noble and learned friend—to whom we are all grateful for this 25 initiative—mentioned, this is a new departure in our legal procedures. It is a very important and very great one. I hope that I am not being disrespectful to your Lordships' House when I say that in a way we are fortunate that we can consider such amendments at Third Reading. That is not possible in another place where such an amendment, if it came up at Report stage, would be the subject of a recommittal Motion; it would be necessary to be back in Committee just for the purpose of this one item. That might have been an advantage but, as it is, we are confined to one speech and cannot explore the matter much further. It is with that in mind that I can make only very general comments.
My first general comment is that, as my noble and learned friend pointed out, this splendid new procedure is to be introduced for legal aid purposes only. At any rate there has to be a legal aid element; as I understand it at least one of the plaintiffs has to be a legally aided person before this procedure can come into force. Again, as my noble and learned friend mentioned, for actions on product liability there is a very strong case. That is an area in which the noble Lord, Lord Allen of Abbeydale, has shown such a great interest. He presided over the Committee and several times addressed your Lordships' House on the subject. There may be other strong cases for making this new procedure a general part of our rules of procedure for civil actions. That would also be a very welcome departure.
My next point is a matter purely of the use of words. I believe that these actions first became known in the United States as "class actions". I consider that to be a misnomer. In this context it is not a statutory term in this country. The expression "class" does not appear in the amendments tabled by my noble and learned friend and I do not consider that the expression "class action" is a good description. We use the word "class" in this country to describe differences between social classes and in relation to education, and we talk about classifications of all kinds of things. However, the people who will get together in such actions in my opinion are not well described as a class; they are better described as a group.
At one moment my noble and learned friend used the expression "group" in passing. I also noticed that in an introductory letter which was sent to some noble Lords, the Law Society referred to a "group" rather than a "class". Therefore, I hope that before it becomes consolidated into our legal practice, procedures and thinking we can get away from the word "class" to describe such actions and describe them as "group actions".
§ Lord Goodman
My Lords, perhaps I may venture to introduce a little reality into this discussion, if it is not impertinent to suggest it. My noble friend Lord Mishcon, who has practised law, as I have for something over 50 years, must realise that it is unreal to suggest that anyone has total choice of his lawyer. To begin with the very best solicitors are not on the legal aid panel. When I say the very best I mean the most prestigious and certainly the most expensive. I think the question of perfection is at the root of a 26 great deal of trouble in our legal system. Is it not better that someone should be able to proceed with a solicitor chosen for him than as so often happens, week after week, day after day, to have to advise people that they cannot be represented at all because they cannot afford the risks of an action?
About two years ago I was called upon to represent some 40 or 50 doctors who unfortunately had all been poisoned at a professional dinner—to them it was not a laughing matter although it has a certain element of humour. Not one of those doctors was eligible for legal aid and not one of them had the means to prosecute an action on his own account. That is the kind of situation with which one has to deal. I think that only a perfectionist would say that it is a terrible thing not to be able to select your own solicitor. It is an even more terrible thing not to be able to bring an action at all to redeem a serious loss. It is on that score that I strongly support this amendment, which appears to me to have a note of realism.
§ 4.15 p.m.
§ The Lord Chancellor
My Lords, first of all perhaps I may say that I referred to a "class action" simply because that was the way in which the problem was originally introduced. The phrase "class action" is nowhere used in these amendments and I certainly did not intend to use it to describe what is covered by the amendments.
Secondly, these amendments do not require that the persons concerned should necessarily be eligible for legal aid under the ordinary criteria. There is power to alter the criteria by reference to particular classes of case which could be used in conjunction with that power. The noble Lord, Lord Goodman, has touched the heart of this amendment. I am particularly grateful that someone of his great experience should support the amendment in this way. When thinking round the problem I felt that I was moving into an area in which theoretical difficulties about choice might be thought to be involved. I agree thoroughly with the view that one has to be realistic about this matter. I believe that it may well be possible to implement these amendments in a way, for example, that would cope with the type of case to which the noble Lord referred.
As I said earlier, I think that this amendment could also be used to cope with the kind of case which the noble Lord, Lord Allen of Abbeydale, raised—I think at Report stage—in relation to the development risks defence.
Perhaps I may turn to what I think it would be fair to say was the hesitation of the noble Lord, Lord Mishcon, in accepting these amendments. The first point related to choice. The noble Lord, Lord Goodman, has dealt with that in a way to which I would not presume to add.
His second doubt related to the fact that many of these actions would be against the Government and the possibility that the Legal Aid Board would be seen as involving a government agency in deciding cases against the Government. I hope that the stature of those who will be appointed to the Legal Aid Board will ensure that they are independent. The Bill 27 makes it clear that the Government will have no right to intervene in the decision whether to grant or to reject any particular application. The day-to-day running of the legal aid system in so far as it is within the board's power—and this amendment deals with that particular area—will not be subject to interference by the Government. It would be quite wrong that the Government could say whether legal aid was to be granted in any case and particularly in a case that was against the Government. If that were a good point it would apply to every type of case against the Government. There are many cases in which legal aid is applied for in cases against the Government which are quite outside the scope of this particular amendment. If that was a good point it would prove much too much.
The third matter was that the Legal Aid Board, with a minimum of two solicitors and a minimum of two barristers on it, is unlikely to have the kind of expertise to understand what sort of arrangement should be made in this type of case. That is a criticism in advance of the people who are to run the Legal Aid Board which I hope will be completely disproved by the event. So I certainly hope that we shall be able to secure persons to take on the responsibility of membership of the Legal Aid Board who have the necessary qualities to take the right decisions on matters of this kind.
Possibly on a slightly divergent note from that, the noble Lord, Lord Morton of Shuna, asked whether the privilege of these amendments will be extended to Scotland. That is a matter on which I have no doubt that my noble and learned friend the Lord Advocate will have a point of view, and it is one which I am sure those responsible for legal aid in Scotland will consider.
I think I also detected in what the noble Lord, Lord Morton of Shuna, asked, the question whether, if an action could be raised on both sides of the Border, it would not be wise to have only one, in which case would it be the Legal Aid Board or the Scottish Legal Aid Board which should have the initiative. I hope that in this we shall have an outstanding example of cross-border co-operation if, in fact, these powers are granted to the Scottish Legal Aid Board. To those of your Lordships who have welcomed this amendment—and I think that probably applies to all who have spoken, though perhaps the noble Lord, Lord Mishcon, had reservations—I should like to express my gratitude.
§ Lord Mishcon
My Lords, before the noble and learned Lord sits down and with the permission of the House, he has perfectly fairly expressed the view that I put to the House that it would be desirable, subject to what I said, that this amendment should be agreed to. I know he will forgive me if I say that he did not quite interpret my proper views, possibly because I did not express them as I should have done, when I talked about difficulties which would confront the Legal Aid Board which would be more appropriately dealt with by a court. I was dealing with a separation of issues, seeing whether there were common issues and giving certain directions which quite obviously 28 would be more appropriately given by the court. Nothing that I said was meant to be at all disrespectful to the personalities who would be making up the judicial board and their competence. I only wanted to make that abundantly clear before the amendment was put to the House.
§ The Lord Chancellor
My Lords, I am very grateful to the noble Lord. Obviously I was seeking to summarise as fairly as I could what he had said and I had made rather an inadequate note of it. So if it was not entirely fair, that is my fault, not his. One can see that procedural directions might well be required from the court in actions of this kind and nothing in this amendment is intended to preclude that. As to whether there are common issues in actions, I should have thought that that was something which the Legal Aid Board would be capable of identifying, and it is that kind of question that it might have to face.
I think the noble Lord, Lord Mishcon, indicated that he might not be proposing his Amendment No. 11 today. Obviously there are a number of difficulties about his Amendment No. 11 which I could enlarge upon. But if he is not minded to move it today, I could perhaps reserve my statement on those difficulties to some more appropriate occasion.
§ On Question, amendment agreed to.
§ Clause 7 [Scope of this Part]:
Lord Elwyn-Jones moved Amendment No. 6:
Page 6, line 33. after ("Part") insert ("including making a will or other instrument").
§ The noble and learned Lord said: My Lords, this amendment proposes to make an addition to Clause 7 of the Bill by making provision that advice and assistance under the green form scheme shall also be provided for the making of a will or other instrument. It is an important part, alas, in this finite world, of our human duties, if we are responsible, to make wills. For those who do not, the result is often very unfortunate for the survivors—
§ Lord Elwyn-Jones
And sometimes it is if they make them, my Lords. That is why it is important, if the noble and learned Lord will allow me, that they should get good advice. He has made my point for me, as he often does in his interruptions—not always intentionally perhaps. But there is need for the provision of legal advice in the making of wills. I have little doubt that the noble and learned Lord will be greatly impressed by the information, which he no doubt knows already, that in the Legal Aid (Scotland) Act there is specific provision in Part II, dealing with advice and assistance, as to any steps which a person seeking advice might appropriately take with regard to making a will or other instruments.
So making a will is expressly provided for there, for good reason, even though I understand from my noble friend, who speaks with great expertise in these matters, that in Scotland making a will is somewhat simpler than it is in England. All the more reason, 29 therefore, for making provision for legal advice in the making of a will in this part of the United Kingdom. I do not think I need dwell at any length upon this matter. It is a clear, simple but, if I may say so, desirable amendment to make to the Bill. My Lords, I beg to move.
My Lords, this amendment will be particularly attractive if the person making a will makes provision in that will to leave a sum of money to reimburse the Legal Aid Board for the cost of the advice received from that body.
§ 4.30 p.m.
§ The Lord Chancellor
My Lords, before preparing the White Paper, consideration was given to the effective use of the money available for legal aid, and one of the areas that was considered was that of making a will or other instrument. It was thought—and I entirely agree with this approach—that in the generality of cases, if one was making a will disposing of property, on the whole that property should bear the cost of the will.
There are, however, some exceptional cases which were referred to in Committee stage. I think at that time the amendment under consideration was being moved by the noble Lord, Lord Mishcon. He pointed to some particular cases where a will might be made which had the effect, for example, in a single parent family of nominating someone to look after the child or children in the event of the death of the single parent. There might not be any property in question but it might be very important that someone should have that responsibility, as nominated by the parent. Therefore, I recognise that there may be exceptions to the generality proposed in the White Paper.
This is a matter which is best dealt with in regulations. Regulations under the relevent power will now require, as a result of the effort of the noble and learned Lord, Lord Elwyn-Jones and others, an affirmative resolution. Therefore, your Lordships would be furnished with the detail and would have an opportunity to consider that detail before the provisions came into force.
I am bound to say that this amendment, which appears to have the purpose of precluding giving effect to the proposal in the White Paper, is not acceptable. I am certainly open to considering exceptions and circumstances where such a rule as we had proposed in the White Paper might have a harsh effect and to limit the proposal so as to exclude such cases. However, I certainly cannot accept that it would be wise to make it compulsory in all circumstances to include advice and assistance for this purpose without exception, which is what I understand the purpose of this amendment to be. I therefore have to suggest to your Lordships that this amendment should not be accepted.
§ Lord Elwyn-Jones
My Lords, it is naturally somewhat disappointing to receive that reply. The Scottish provision is, I understand, without exception. I do not quite see why the circumstances south of the Border are so different that help in the making of a will is not needed in the South as well as 30 north of the Border. It is a trap stage in the life of so many people. The noble and learned Lord. Lord Hailsham (more in jest than in gravity I think) suggested that getting a lawyer to make a will was as capable of producing confusion. Nevertheless, assistance is greatly needed.
I used to practise the law in the part of these islands where will disputes were very exciting. I will not say they were lucrative, but an important part of a lawyer's existence. The frequency with which lack of testamentary capacity was raised, for instance, was very great indeed.
However, this is an important part of responsibility and I am accordingly extremely disappointed that the Lord Chancellor is not disposed to make a change. I do not know whether, by talking on, I might be able to persuade him to change his mind, but an indication suggests that is not so. I cannot say that I would go to the stake about the amendment; but in the unfortunate circumstances of the adamant refusal of the noble and learned Lord, I can only hope that when the matter is considered in another place, for once they will show a better example to us than we have been able to give to them. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
§ Clause 8 [Availability of and payment jar, advice and assistance]:
§ Lord Elwyn-Jones moved Amendment No. 7:
Page 7, line 12, leave out subsection (3) and insert—
("(3) Assistance by way of representation under this Part shall not be given without the approval of the Board, except in proceedings before the Social Security Commissioners, subject to any other prescribed exceptions.").
§ The noble and learned Lord said: My Lords, this is an amendment which I hope may attract the approval of the noble and learned Lord, bearing in mind that he has indicated in Committee that he takes a sympathetic view of the provisions of advice and assistance by way of representation under the green form scheme in proceedings before the Social Security Commissioners. Those commissioners are the body to whom appeals on a point of law are referred from the Social Security Appeals Tribunal. They are dealing, by virtue of the work that they have to do, with complex law. Indeed, the noble and learned Lord the Lord Chancellor himself indicated in Committee that he felt that the Social Security Commissioners was a tribunal which should have high priority in having some form of legal representation. That was perhaps at a time when we were seeking full legal aid and advice, but it may well be that the noble and learned Lord will be disposed to accept the amendment. In case he has not already decided that (and as I do not have another opportunity to speak as I understand it) I shall say a little more about this.
§ The noble and learned Lord said that the commissioners are at the very top layer of the statutory authorities in social security. At the Committee stage I think he was inclined to favour representation by means of assistance. As things 31 stand, in any proceedings before the Social Security Commissioners, the DHSS is always represented by lawyers with particular expertise in that field of law. One asks what chance an unrepresented claimant would have to pursue his or her case against the knowledge and expertise of lawyers so instructed by the DHSS.
§ My understanding is that extension of ABWOR to the proceedings would cost very little. The appeal to commissioners applies on points of law only and there is no question of lengthy witness proceedings. In the circumstances therefore, and in view of the crucial importance of this matter to the potential claimants who will be from the poorest section of the community, least able to afford assistance and most deserving of it, I hope that the noble and learned Lord will agree to this modest proposal. I beg to move.
§ Lord Wigoder
My Lords, might I support the amendment moved by the noble and learned Lord, Lord Elwyn-Jones. I do so on the grounds, as he has indicated, that if there is to be any extension of legal assistance to cover people appearing before any tribunals, then the Social Security Commissioners are clearly the first tribunal that should be borne in mind for a possible extension, as the noble and learned Lord the Lord Chancellor himself said on a previous occasion.
I support the proposal that it should be so extended, first, because the proceedings before the Social Security commissioners are frequently very complex; and, secondly, because there is very often case law involved which it is difficult for an unrepresented applicant to discover for himself. Indeed, it is a matter of great difficulty for a represented applicant to discover, unless the lawyer is a person who is accustomed to appearing before these tribunals and knows exactly where to find authorities.
In those circumstances, I hope the noble and learned Lord the Lord Chancellor will agree that in principle it is desirable that some steps should now be taken to extend representation to this particular tribunal.
§ Lord Renton
My Lords, I must say that I have some doubts about the amendment. I agree that the proceedings before the Social Security Commissioners can sometimes be complex, but so can many other proceedings. I should have thought that within the general framework of the Bill—if one may dare to use such an expression—it would be wrong to make an exception just for that particular type of proceeding. We are here talking about advice and assistance, not representation; and in that connection I think we need to consider subsection (4) of Clause 8, which says:Approval under subsection (3) above may be given with or without limitations and may be amended, withdrawn or revoked.I think that is taken from the previous legislation and I do not think that there was any adverse comment on it at any earlier stage of the proceedings in this House.
32 It seems to me that assistance by way of representation—because that is what the amendment refers to—would seem to be outside the scope of Clause 8. In any event, even though it is considered to be within the scope of Clause 8, there does not seem to be a strong reason for differentiating it from the kind of advice, assistance or indeed representation that might apply to any other type of proceeding. Therefore, I should be surprised if my noble and learned friend were to accept the amendment.
§ The Lord Chancellor
My Lords, I do not propose to surprise my noble friend on this occasion. The Social Security Commissioners in certain circumstances appear to me, as I said at Committee and repeated on Report, to be in a situation where perhaps a high priority exists if there is to be an extension of the scope of legal aid. On the other hand, a research project has been commissioned by my predecessors, to be carried out on behalf of the department, into the effect of representation in tribunals fairly generally. It is also possible that the board itself might have a view on this subject.
There is also of course the question of resources to be borne in mind. Your Lordships may take it, as I said at the outset, that I personally am very sympathetic to extending some form of legal aid to hearings before the Social Security Commissioners, but I do not believe the time is ripe to put that into statutory form now. It may well be that at some time in the future I may have the privilege of doing something about this, but there are many other competing situations so I do not hold out any particular promise as regards that matter. However, I certainly do not believe it would be right to do it in this way at this time. If an opportunity offered, the framework is sufficiently flexible to enable the extension to be made and I hope that your Lordships might agree to leave the matter on that basis.
§ Lord Elwyn-Jones
My Lords, confident though I am in the long survival of the noble and learned Lord, time is of the essence and one would like not to have to wait. My information is, in regard to the research that was referred to by the noble Lord, that it does not cover proceedings before the Social Security Commissioners. Perhaps the noble and learned Lord will examine that when these proceedings are over.
The submission which I make—and I am grateful for the support from the Alliance Benches—covers what we conceive to be an important omission in the present provision of legal advice to those in need. In view of the basic goodwill expressed by the noble and learned Lord the Lord Chancellor, and his own earlier view that Social Security Commissioners are a tribunal which has high priority in having some form of legal representation before it, the time to improve the law in this important field is now. For that reason, I think it is desirable to test the opinion of the House upon this matter.
§ 4.45 p.m.
§ On Question, Whether the said amendment (No. 7) shall be agreed to?33
§ Their Lordships divided: Contents, 63; Not-Contents, 120.34
|DIVISION NO. 2|
|Airedale, L.||Jay, L.|
|Ardwiek, L.||Jeger, B.|
|Attlee, E.||Kilmarnock, L.|
|Aylestone, L.||Listowel, E.|
|Beaumont of Whitley, L.||Llewelyn-Davies of Hastoe, B.|
|Birk, B.||Longford, E.|
|Bonham-Carter, L.||McCarthy, L.|
|Boston of Faversham, L.||McIntosh of Haringey, L.|
|Bruce of Donington, L.||McNair, L.|
|Carmichael of Kelvingrove, L.||Meston, L.|
|Carter, L.||Milford, L.|
|Cledwyn of Penrhos, L.||Morton of Shuna, L.|
|Cocks of Hartcliffe, L.||Ogmore, L.|
|Davies of Penrhys, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Dean of Beswick, L.|
|Diamond, L.||Raglan, L.|
|Donaldson of Kingsbridge, L.||Rathcreedan, L.|
|Elwyn-Jones, L.||Ross of Marnock, L.|
|Ewart-Biggs, B.||Serota, B.|
|Ezra, L.||Stewart of Fulham, L.|
|Falkland, V.||Stoddart of Swindon, L.|
|Fisher of Rednal, B.||Strabolgi, L.|
|Gallacher, L.||Taylor of Blackburn, L.|
|Galpern, L,||Taylor of Mansfield, L.|
|Graham of Edmonton, L. [Teller.]||Tordoff, L.|
|Turner of Camden, B.|
|Grey, E.||Underhill, L.|
|Hampton, L.||Wallace of Coslany, L.|
|Harris of Greenwich, L.||Walston, L.|
|Houghton of Sowerby, L.||White, B.|
|Hughes, L.||Wigoder, L.|
|Hutchinson of Lullington, L.||Williams of Elvel, L.|
|Irving of Dartford, L.|
|Airey of Abingdon, B.||Fraser of Kilmorack, L.|
|Allen of Abbeydale, L.||Gainsborough, E.|
|Allenby of Megiddo, V.||Gardner of Parkes, B.|
|Allerton, L.||Gray of Contin, L.|
|Ampthill, L.||Gridley, L.|
|Arran, E.||Haddington, E.|
|Beaverbrook, L.||Hailsham of Saint Marylebone, L.|
|Belhaven and Stenton, L.|
|Beloff, L.||Harmar-Nicholls, L.|
|Belstead, L.||Hayter, L.|
|Benson, L.||Hesketh, L.|
|Bessborough, E.||Hives, L.|
|Blatch, B.||Holderness, L.|
|Blyth, L.||Hood, V.|
|Boyd-Carpenter, L.||Hooper, B.|
|Brabazon of Tara, L.||Hylton-Foster, B.|
|Brougham and Vaux, L.||Iddesleigh, E.|
|Bruce-Gardyne, L.||Ironside, L.|
|Caithness, E.||Johnston of Rockport, L.|
|Cameron of Lochbroom, L.||Joseph, L.|
|Campbell of Croy, L.||Kaberry of Adel, L.|
|Carnegy of Lour, B.||Killearn, L.|
|Carnock, L.||Kimball, L.|
|Coleraine, L.||Lane-Fox, B.|
|Cottesloe, L.||Lauderdale, E.|
|Cowley, E.||Lawrence, L.|
|Craigmyle, L.||Long, V.|
|Cullen of Ashbourne, L.||Luke, L.|
|Davidson, V. [Teller.]||Mackay of Clashfern, L.|
|Denham, L. [Teller.]||Malmesbury, E.|
|Digby, L.||Mansfield, E.|
|Dundee, E.||Manton, L.|
|Eccles, V.||Margadale, L.|
|Ellenborough, L.||Marley, L.|
|Erne, E.||Massereene and Ferrard, V.|
|Faithfull, B.||Merrivale, L.|
|Ferrers, E.||Mersey, V.|
|Milverton, L.||Seebohm, L.|
|Moran, L.||Sempill, Ly.|
|Morris, L.||Shannon, E.|
|Mottistone, L.||Shaughnessy, L.|
|Mountgarret, V.||Simon of Glaisdale, L.|
|Mowbray and Stourton, L.||Skelmersdale, L.|
|Munster, E.||Slim, V.|
|Murton of Lindisfarne, L.||Somers, L.|
|Nelson, E.||Stockton, E.|
|Newall, L.||Strathcona and Mount Royal, L.|
|Nugent of Guildford, L.||Strathspey, L.|
|O'Brien of Lothbury, L.||Sudeley, L.|
|Orkney, E.||Terrington, L.|
|Oxfuird, V.||Teviot, L.|
|Plummer of St. Marylebone, L.||Teynham, L.|
|Thomas of Gwydir, L.|
|Porritt, L.||Trumpington, B.|
|Renton, L.||Vaux of Harrowden, L.|
|Ridley, V.||Waldegrave, E.|
|Rippon of Hexham, L.||Westbury, L.|
|Rodney, L.||Wolfson, L.|
|St. Davids, V.||Wyatt of Weeford, L.|
|Saltoun of Abernethy, Ly.||Wynford, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.
§ 4.56 p.m.
§ Clause 14 [Availability of, and payment for, representation under this Part]:
§ The Lord Chancellor moved Amendments Nos. 8 to 10:
Page 11, line 18, at end insert—
("( ) Where the case is one in which the Board has power to secure the provision of representation under this Part by means of contracts with other persons, the grant of representation under this Part may be limited under subsection (4) above as regards the persons who may represent the legally assisted person to representation only in pursuance of a contract made with the Board.")
Page 11, line 23, at end insert—
("(5A) The Board's obligation under subsection (5) above is—
Clause 15, page 12, line 27, at end insert—
("(10) Where a legally assisted person has been represented in any proceedings in pursuance of a contract made with the Board on terms which do not differentiate between the remuneration for this and other cases, the reference in subsection (9)(a) above to the sums paid or payable by the Board on his account in respect of the proceedings shall be construed as a reference to such part of the remuneration payable under the contract as may be specified in writing by the Board.")
§ The noble and learned Lord said: My Lords, I have spoken to Amendments Nos 8 to 10 which carry out the policy I outlined in connection with Amendment No. 5. With the leave of the House, I beg to move these amendments en bloc.
§ On Question, amendments agreed to.
§ [Amendment No. 11 not moved.]35
§ Clause 20 [Availability of representation under this Part]:
The Lord Chancellor moved Amendment No. 12:
Page 16, line 13, at end insert ("and section (Criteria for grant of representation for trial proceedings) applies for the interpretation of this subsection in relation to the proceedings to which that section applies.")
§ The noble and learned Lord said: My Lords, at the Report stage I indicated that I would agree to incorporate into the Bill the "Widgery criteria" as they have been called in affectionate remembrance of the Lord Chief Justice. Amendments Nos 12 and 14 have that effect. However, Amendment No. 14 has been drafted by a parliamentary counsel to incorporate the Widgery criteria in language judged to be appropriate for primary legislation. That was not what the Lord Chief Justice had in mind when he laid out the criteria. I have also incorporated a power to vary the factors in line with the Scottish Act in the light of experience. I beg to move.
§ Lord Morton of Shuna
My Lords, we are grateful to the noble and learned Lord for tabling these two amendments. In the circumstances, we shall not move Amendment No. 13.
On Question, amendment agreed to.
[Amendment No. 13 not moved.]
The Lord Chancellor moved Amendment No. 14:
After Clause 20, insert the following new clause:
§ ("Criteria for grant of representation for trial proceedings.
§ .—(1) This section applies to proceedings by way of a trial by or before a magistrates' court or the Crown Court or on an appeal to the Crown Court against a person's conviction.
§ (2) The factors to be taken into account by a competent authority in determining whether it is in the interests of justice that representation be granted for the purposes of proceedings to which this section applies to an accused shall include the following—
- (a) the offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty or lead to loss of his livelihood or serious damage to his reputation;
- (b) the determination of the case may involve consideration of a substantial question of law;
- (c) the accused may be unable to understand the proceedings or to state his own case because of his inadequate knowledge of English, mental illness or other mental or physical disability;
- (d) the nature of the defence is such as to involve the tracing and interviewing of witnesses or expert cross-examination of witness for the prosecution;
- (e) it is in the interests of someone other than the accused that the accused be represented.
§ (3) The Lord Chancellor may, by order, vary the factors listed in subsection (2) above by amending factors in the list or by adding new factors to the list.").
§ On Question, amendment agreed to.
§ Clause 25 [Representation in care proceedings: scope and competent authorities]:
§ The Lord Chancellor moved Amendments Nos. 15 to 25:
§ Page 20, line 18, leave out ("before a juvenile court").
§ Page 20, line 20, leave out ("before a juvenile court").
§ Page 20, line 22, leave out ("and").
§ Page 20, line 23, leave out ("on appeal before the Crown Court").36
Page 20, line 25, at end insert—
("(d) proceedings under section 3 of the Children and Young Persons Act 1963 (application by parent or guardian for an order directing a local authority to take proceedings under section I of the 1969 Act);
(e) proceedings under section 3, 5 or 67(2) of the 1980 Act (proceedings in connection with resolutions by local authorities with respect to the assumption of parental rights and duties); and
(f) proceedings under Part IA of the 1980 Act (access orders);").
§ Page 20, line 32, leave out ("courts") and insert ("authorities").
Page 20, line 37, at end insert—
("(c) as respects apppeals from decisions of juvenile courts to the High Court, the Board;
(d) as respects proceedings before a justice of the peace under section 12E of the 1980 Act (applications for emergency orders), the justice of the peace.").
§ Page 20, line 40, after ("of") insert ("any").
§ Page 20, line 40, leave out ("before any court").
Page 20, line 43, leave out ("court") and insert ("authority").
Clause 26, page 21, line 5, leave out from first ("to") to end of line 13 and insert ("any person, other than a local authority, who is a party to the proceedings.").
§ The noble and learned Lord said: My Lords, Amendments Nos. 15 to 25 are detailed amendments giving effect to the policy I described when speaking to Amendment No. 14. With the leave of the House, I beg to move the amendments en bloc.
§ On Question, amendments agreed to.
§ Clause 29 [Act not generally to affect position of legal representatives or other parties]:
§ The Lord Chancellor moved Amendments Nos. 26 to 35.
Page 23, line 1, leave out from beginning to ("shall") in line 3 and insert—
("(2) A person who provides advice, assistance or representation under this Act").
§ Page 23, line 4, after ("is") insert ("made by the Board or").
§ Page 23, line 8, at end insert (", arising otherwise than under a contract,").
§ Clause 30, page 23, line 10, leave out ("subsection (2) below") and insert ("the provisions of this section").
§ Page 23, leave out line 14 and insert ("from among the solicitors and counsel willing to provide advice, assistance or representation under this Act.").
Page 23, line 15. leave out subsection (2) and insert—
("(2) Where the Board limits a grant of representation under Part IV to representation in pursuance of a contract made by the Board, it may, as it thinks fit, assign to the legally assisted person a solicitor or a solicitor and counsel or direct that he may only select a solicitor from among those with whom such a contract subsists.
(2A) A person's right to select his solicitor or counsel is subject, in the case of representation under Part V, to regulations under subsection (6) below.
(2B) Subsection (1) above does not confer any right of selection in relation to proceedings under section 27 for the purpose of proceedings for contempt.").
§ Clause 31, page 24, line 19, at end insert ("and (5A)").
§ Clause 32, page 25, line 44, leave out ("(f) modify this Act for") and insert ("(2A) Regulations may also modify this Act for the purposes or').
§ Page 26, line 1, leave out ("subsection (1) and (2)") and insert ("subsection (2A)").
§ Page 26, line 2, leave out ("under this section may") and insert ("may also").
§ The noble and learned Lord said: My Lords, Amendments Nos. 26 to 35 are tabled in pursuance of the policy I sought to describe in relation to 37 Amendment No. 5. With the leave of the House I beg to move the amendments en bloc.
§ On Question, amendments agreed to.
§ The Lord Chancellor moved Amendments Nos. 36 and 37:
§ Page 26, line 37, at end insert ("and").
§ Page 26, leave out lines 39 to 42.
§ The noble and learned Lord said: My Lords, Amendments Nos. 36 and 37 are brought forward in the light of my consideration of comments made at the Report stage by a number of your Lordships as regards a similar amendment moved by the noble Lord, Lord Benson. He found the wording of paragraph (g) to be obscure. I sought to explain the matter at Report stage. Having considered that explanation and the fact that not only the noble Lord, Lord Benson, but also my noble and learned friends Lord Ackner and Lord Griffiths found the wording obscure—although that is, I believe a less harsh description of the amendment than the one they used—I have considered whether it is absolutely essential to retain the paragraph. Having taken advice, I have concluded that it is not necessary to retain the paragraph. Therefore, Amendments Nos. 36 and 37 are intended to delete it from the clause. I beg to move.
§ Lord Ackner
My Lords, I am grateful to my noble and learned friend the Lord Chancellor for removing that paragraph. My noble friend Lord Benson did not expect the other amendments to be moved so fast. As he was the mover of the amendments on Report, he intended to be here to express his gratitude. However, I shall do so now on behalf of us both.
§ On Question, amendments agreed to.
§ Clause 33 [Advisory Committee]:
§ 5 p.m.
§ The Lord Chancellor moved Amendments Nos. 38, 39 and 40:
§ Page 27, line 12, after ("recommendations") insert ("or furnish comments").
Page 27, line 23, at end insert—
("(3A) It shall be the duty of the advisory committee to provide to the Lord Chancellor, as soon as possible after 31st March in each year, a report containing any advice, recommendations or comments of theirs on questions or matters arising during the preceding twelve months.").
§ Page 27, line 25, leave out from ("any") to end of line 27 and insert ("the annual report of the committee made to him under subsection (3A) above.").
§ The noble and learned Lord said: My Lords, amendments Nos. 38, 39 and 40 are intended to give effect to considerations which I have had as a result of matters raised in the course of the discussions on this Bill about the functions of the Legal Aid Advisory Committee and also as a result of a meeting which I had with it at its request, I think I am right in saying, during the course of the Bill's proceedings when we had a very constructive discussion.
§ It has been my view that to have flexibility when the committee presented its report would be an advantage, but having discussed the matter the 38 committee felt that there was merit in having an annual timetable. I feel it right to give effect to that and also to make it clear that whatever is said in the report will be laid before Parliament. Therefore, Amendments Nos. 38, 39 and 40 are intended to give effect to that. I beg to move Amendments Nos. 38, 39 and 40 en bloc.
§ Baroness Faithfull
My Lords, I should like to support Amendments Nos. 38, 39 and 40 and to say how much the committee is appreciated by all the voluntary organisations, particularly the National Consumer Council and the Citizens' Advice Bureau. The committee is looked upon very much as an independent body to whom one can apply. Although the Legal Aid Board will, I am sure, do its work extremely well, it is good, at any rate to start with, to have a guarder of the guardians.
§ The Lord Chancellor
My Lords, I am grateful to my noble friend for her observations. I also value the work of the committee and, as I have said, I certainly intend it to remain in operation and functioning as well as hitherto, at least through the transistional provisions.
§ On Question, amendments agreed to.
§ Clause 34 [Orders and regulations: general]:
§ The Lord Chancellor moved Amendments Nos. 41 and 42:
§ Page 27, line 40, after ("2(4)") insert ("and 33(5)").
§ Page 27, line 43, after ("2(4)") insert ("or 33(5)").
§ The noble and learned Lord said: My Lords, on Report, I undertook to consider making the power to stand down the advisory committee dependent upon an instrument passed by the affirmative procedure. These amendments are intended to have that effect. Since they are so closely related, with the leave of your Lordships, I propose to move them en bloc.
§ Lord Renton
My Lords, I wonder whether the word "and" in line 41 should not be "or"? However, there may be a good reason for that.
§ The Lord Chancellor
My Lords, the noble Lord is probably correct in the circumstances. Perhaps the noble Lord will allow me to proceed with this without commitment and we can have it corrected in another place.
§ On Question, amendments agreed to.
§ Clause 36 [Restriction of disclosure of information]:
§ The Lord Chancellor moved Amendments Nos. 43, 44 and 45:
§ Page 28, line 13, after ("furnished") insert ("for the purposes of this Act").
§ Page 28, line 14, leave out ("for the purposes of this Act") and insert ("upon whom functions are imposed or conferred by regulations and so furnished").
§ Page 28, line 46, at end insert ("or a person upon whom functions are imposed or conferred as mentioned in subsection (1) above").39
§ The noble and learned Lord said: My Lords, this relates to a matter raised in Committee by the noble Lord, Lord Mishcon, about the provisions relating to the disclosure of information. I have considered what he said and have decided to bring forward these amendments to make the position absolutely clear. The first two amendments, Amendments Nos. 43 and 44, make it clear that the clause covers only information furnished to the board or to other courts, persons or body of persons for the purposes of the Act. The third amendment corrects a defect in subsection (6). At the moment information furnished to counsel or a solicitor is defined as not being information furnished to the board. The amendment more correctly reflects the position set out in subsection (1).
§ I should perhaps mention, in order to allay any anxiety on the matter, that the specific example of a journalist, which the noble Lord, Lord Mishcon, raised in Committee, does not seem to fall foul of this clause even as it stands, though these amendments make that position even clearer. Since these amendments are all closely connected, with the leave of your Lordships, I propose to move them en bloc.
§ On Question, amendments agreed to.
§ Clause 38 [Adaptation of rights of indemnity in cases of advice, assistance or representation in civil proceedings]:
§ The Lord Chancellor moved Amendment No. 46:
Page 29, line 43, at end insert—
("( ) Where a person's right to be indemnified ensures for the benefit of the Board under subsection (3) above in a case where he has been represented in pursuance of a contract made with the Board on terms which do not differentiate between the remuneration for his and other cases, the reference in that subsection to any expenses incurred by the Board on his account shall be construed as a reference to such part of the remuneration payable under the contract as may be specified in writing by the Board.").
§ The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 5 to which I have already spoken.
§ On Question, amendment agreed to.
§ Schedule 2 [Civil proceedings: scope of Part IV representation]:
§ The Lord Chancellor moved Amendments Nos. 47, 48 and 49:
§ Page 35, leave out line 14.
§ Page 35, line 24, leave out paragraph 7.
§ The noble and learned Lord said: My Lords, Amendments Nos. 47,48 and 49 go with the policy to which I spoke in relation to Amendment No. 4. As they are closely connected, with your Lordships' leave, I shall move them en bloc.
§ On Question, amendments agreed to.40
§ Schedule 5 [Minor and Consequential Amendments]:
The Lord Chancellor moved Amendment No. 50:
Page 42, line 34, after ("14(5)") insert ("and (5A)").
§ The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 5 to which I have already spoken. I beg to move.
§ On Question, amendment agreed to.
§ Schedule 6 [Repeals]:
§ The Lord Chancellor moved Amendment No. 51:
Page 44. line 50, at end insert—
("1986 c. 28. The Children and Young Section 3(3).") Persons (Amendment) Act 1986.
§ The noble and learned Lord said: My Lords, this amendment goes with Amendment No. 4 to which I have already spoken.
§ On Question, amendment agreed to.
§ An amendment (privilege) made.
§ The Lord Chancellor
My Lords, I beg to move, that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
§ Lord Elwyn-Jones
My Lords, in indicating our intention not to oppose the Motion, it does not mean that it has met with our general approval. On the contrary, the Bill has perhaps proved to be more notable for its omissions than its content. The major problem that the House has had to meet is that in many respects it is an enabling Bill and we do not know what its precise shape and future content will be. The significant change is the setting up of the Legal Aid Board and that has been generally welcomed. That does not imply basic criticism and disapproval of the administration conducted by the Law Society. On the contrary, the House has acknowledged its gratitude for the valuable work done. However, the quantum of work now to be dealt with in the legal aid and advice field has increased enormously and it is right that this independent—as we hope it will be—authority should be set up.
A great deal of its value will no doubt depend upon the degree of the independence it will enjoy. It will be under rigid financial control and one of the important features that remain for the future to indicate is the readiness of the Government to provide adequate financial resources for this work. We had long debates over the financial provisions of the Bill and there was clear warning from many quarters of the House about the risk of having a second-class legal aid service with insufficient remuneration to attract those of ability and competence to conduct the work required in the courts, which is very often of a most grave character in both the criminal and civil fields.
The composition of the Legal Aid Board is as yet undecided, but much will depend upon its quality. We know that it will extend from 11 to 17 in number and we were reassured during the discussions on the Bill that there would be not only two solicitors but 41 also two representatives of the Bar on the board. What other choice will determine its composition will be at the discretion of the noble and learned Lord the Lord Chancellor, but he has indicated that a wide range of competence and ability, and representation of the community at large, will be included. We look to the realisation of the promises that it will be a reliable and independent board representing the kind of persons and bodies that ought to be represented in its administration. If possible there should be a good presence of those representing the potential consumers as well as the professional experts who will be required to manage the board and its work successfully.
I venture to say that a great deal of the content and future shape of the Bill remains uncertain, partly because of the mass of secondary legislation which the noble and learned Lord announced would be necessary and which we have not yet seen. No doubt we shall see it in due course. I would be less than gracious if I did not recognise the important changes which he has made in this field, indicating that certainly for the most important parts of the secondary legislation the affirmative resolution of both Houses will be necessary in respect of measures of importance in principle and in substance. Of course we are grateful for that important concession.
However, in my submission there has been a considerable omission in the failure to extend legal aid to more statutory tribunals. The particular lack is with regard to industrial tribunals dealing with important matters such as unfair dismissal, redundancy, equal pay and sex discrimination. It is wrong that cases in those categories should take place with employers and government departments in the proceedings having a panoply of lawyers on their side but in many cases with no adequate representation for the claimant. That is quite wrong and unjust. It is disappointing that the Government have not seen fit to advance in that field. I am informed that last year there were over 4,000 contested cases in the employment field and there was gross inequality in representation. That cannot be right and we shall have to return to this subject again in future debates and future legislation.
Finally, there is one aspect where there is still a great deal of anxiety; that is, the provision of adequate resources for advice and law centres. The position still is, to put it mildly, uncertain. We have tried from various parts of the House to obtain the provision of more finance for the advisory bodies, but they still feel a sense of insecurity. The Lord Chancellor has refused to accept responsibility for them, as has the Secretary of State; and local government authorities have been reluctant to accept full responsibility, though many have been good.
The Legal Aid Board will have an important role in this sphere and one can only hope that it will fill the gap. In the legal aid set-up, where so much depends on the advice of bodies often run by volunteers or by those in law centres on the most modest of remunerations, we look to the Lord Chancellor, who has overall responsibility, to make sure that in this vital area the provision of legal aid and advice is adequately financed and provided for. However, for 42 the concessions that the Lord Chancellor has made, we express our gratitude.
§ 5.15 p.m.
§ Lord Hailsham of Saint Marylebone
My Lords, I rise to congratulate my noble and learned friend on the Woolsack on passing through this House this important and valuable measure. I think it does a great deal more for both the profession and the recipients of legal aid than the noble and learned Lord who has just spoken was prepared to concede. As one who had some part in the preparation of the earlier phases of the legislation last year, I was gratified and perhaps a little flattered to learn that in many respects my noble and learned friend on the Woolsack supported the difficult judgments that at times I had to make.
I hope the noble and learned Lord, Lord Elwyn-Jones, will not mind my complaining mildly of the phrase "a second-class service". I hope that we shall never hear it again.
§ Lord Hailsham of Saint Marylebone
My Lords, it is the expression that I object to and that is what is being repeated. I intend no commercial plug but I run a Maestro car. It is not a Porsche; it is not a Rolls-Royce; it is not a Bentley but it does what I want it to do. I use the names of people deceased for fear of giving another commercial plug, which would not be acceptable, but it is not every case that requires a Pat Hastings, a Norman Birkett, an Edward Carson or a Rufus Isaacs. The general run of the legal profession is perfectly capable within the bounds of the existing scheme of providing the service that is required. I hope we shall hear no more of this awful phrase "a second-class service" for those who choose not to have antimacassars behind their backs in a railway carriage or who have little cars instead of big ones.
As regards the question of tribunals, I should like to repeat words which I have used before. Obviously any Lord Chancellor in administering legal aid is faced with the fact that he is presiding over a branch of the social services upon which demands are being made faster than any other. In those circumstances it is inevitable that the service itself should be subject to a good deal of scrutiny from rival postulants as regards the moneys of the taxpayers. It is not surprising that the service should also be suffering from a number of growing pains because it is growing very rapidly indeed. The reasons for its growth are not altogether desirable; namely, the increase in crime, the high rate of divorce and road accidents.
As regards the question of tribunals, since the late Aneurin Bevan in another place started them off in one field after another just after the war, I have seen develop a sort of Rake's Progress. First of all we had tribunals usually with three members, one of whom was a lawyer, another was supposed to represent the employers or the landlords and the other the initiator of the proceedings for unfair dismissal or diminution or increase in rents; whatever the case may be. When they were introduced we were told that there would 43 be no more beastly legal formalities and no more beastly lawyers to put up the cost and to create delays with quibbling arguments. After about six months we heard the legal profession in its majesty say that the employer was legally represented so the applicant must equally be legally represented. We return to a kind of Rake's Progress. We create these tribunals to avoid legal intervention and we end with the lawyers moving in in a big way—in a trade union way—and getting in on both sides.
It is true that to a cobbler there is nothing quite so good as leather. That is right. Advocacy is an art and when practised skilfully it can produce results. We must not forget that essential fact. Nonetheless, a Lord Chancellor who presides over legal aid is bound to face a dilemma. Either he spreads his money thickly where it is most needed and the money is limited, or he spreads it thinly over a wider field which does not do much good for anybody. I am perfectly sure that above all in this area of work which is rapidly increasing the money ought to be spread thickly and where it is most needed rather than spread thinly over a wider field.
I believe that the Lord Chancellor has made a pretty wise choice about the way it should be spread. As the noble and learned Lord, Lord Elwyn-Jones, knows very well, I am not in any way an enemy of law centres and that kind of thing. If I had to choose between spreading my money thickly on the green form scheme and proper legal advice for the individual and increasing the ambiance of law centres, I believe I would go for the first. On the whole I do not regret either having retained those law centres which the noble and learned Lord supported, I believe rather piratically, or having gone in for the green form scheme, which has justified itself even more so over the years.
I believe the legal profession has every reason to be grateful to my noble and learned friend for supporting the abolition of the deduction of the percentage from what was a fair fee. It was a feature from the first of the scheme in civil litigation. I always thought that to be unjust and I believe my noble and learned friend is to be congratulated for removing it.
He has also chosen the right balance on remuneration. There is one factor that I hope will remain in the minds of the legal profession. There has always been an element of sheer idealism in the services that we provide. There are occasions when a Pat Hastings or a Norman Birkett is needed by a poor man and perhaps occasionally lawyers ought to provide their services at rather less than their commercial value. I should be very sorry if the tradition of the legal profession in that way did not persist into the present age.
Perhaps I have detained the House too long. I rose really to congratulate my noble and learned friend.
§ 5.30 p.m.
§ Lord Simon of Glaisdale
My Lords, from the Cross-Benches perhaps I may be allowed to congratulate my noble and learned friend on the Woolsack on having piloted through the House what 44 I regard on the whole as an extremely valuable Bill and on showing considerable responsiveness to the suggestions that have been made.
Before I come to those who have opposed the Bill or parts of it, I hope I am forgiven for mentioning my noble and learned friend Lord Hailsham in view of our long companionship. Obviously his position was to some extent a delicate one, since he has had much to do with the genesis of the Bill. It seems to me that his contributions have been admirably timed, always constructive and helpful.
Finally, I come to those who have opposed parts of this Bill. They have been the spokesmen of the Law Society in the shape of the noble Lord, Lord Mishcon, and three of my noble and learned friends who have been chairmen of the Senate of the Bar and of the Inns of Court. I agree entirely with what has just been said by my noble and learned friend Lord Hailsham. There are fears of a first and second-class service. A first-class service is that of counsel and solicitor who appear for paying clients and the second-class service is for those who appear in cases financed by legal aid. That suggestion is entirely or very largely misplaced. I do not believe that there will be any division of the profession in that way.
I say so because I do not believe that the profession will allow it. I do not believe that it will allow it for the reason that was indicated earlier and has just been repeated by my noble and learned friend Lord Hailsham. The legal profession has always acknowledged its duty to see that justice is prosecuted. Until 1949 we had a legal aid scheme in which the procedure was in forma pauperis. Eminent solicitors and counsel always regarded it as their duty to see that that system worked. Famous cases were pursued up to the Bar of your Lordships' House by solicitors and counsel appearing without any fee. I am sure that that spirit will be pursued in relation to legal aid.
It will be more difficult these days because the Bar is much larger than it was. It is no longer the Bar of Pendennis. The solicitors' profession has enormously proliferated. It is no longer the solicitors' profession that was pictured in that classic of Hine's, Memoirs of an Uncommon Attorney. However, I am quite sure that the problem is manageable. Just as counsel and solicitors managed to make the proceedings in forma pauperis work by acknowledging their supervening duty to make it work in the interests of justice, just as they helped to launch the legal aid scheme by accepting a percentage cut in what would be the normal emolument, I am quite certain that what my noble and learned friend Lord Hailsham described at Report stage as that spirit of idealism (a point that was taken up nobly by the noble Lord, Lord Mishcon) will prevail, will be organised and will prevent any kind of division into a first or second-class service.
The opposition of those who opposed the Bill in the way I have described could not be justified, certainly in so far as many of the amendments amounted to drawing an open cheque on the Exchequer and having open-ended financial commitments in this narrow field. It is not the only field in the administration of justice: my noble and 45 learned friend on the Woolsack wants more courts and more judges in order to speed up the administration of justice. In addition, there are all the competing fields of national health, defence and so on. That line could not be justified and will not work out to the mischief that even my noble and learned friend Lord Elwyn-Jones painted just now.
Nevertheless, although I welcome this Bill and although I would have stopped at this point were it not going to the other place, I should like to mention two serious defects as I see the Bill. One is the defect in Clauses 12 and 17 that has been pointed out; namely, what is by statutory definition an injustice to the unassisted party who succeeds in an action which has been financed by the Legal Aid Board. Loss will be suffered. Who should bear that loss? Should it be the public body which has forced the successful defendant into court to vindicate his right; or should it fall on the unassisted party even though it is just and equitable—that is the phrase in the statute—that he should get his costs? If it had not been an assisted case he would have got his costs. As it is, he will not get them; not even if he shows hardship—he has to show severe hardship. That is a major injustice that will have to be considered—and I do not doubt will be considered—in another place.
It might be justified if the rectification were extremely costly; but even though my noble and learned friend on the Woolsack had been alerted to this point in Committee he could put no price on it when we came to the Report stage. He thought that it would be expensive. I venture to take quite a different view. I presided over a division of the High Court where the litigation was a great consumer of legal aid funds. I came across only one case where this point arose. I do not doubt that there were others but they must have been very few. Moreover they will be minimised by the provision which will be in regulations whereby the unassisted party can be heard when the Legal Aid Board considers the merits.
There is one final blemish which is diffused in the Bill. I refer to the use of the ridiculous phrase "with the consent of the Treasury", which appears several times. On each occasion it appears quite unnecessarily. The terms "consultation with the Treasury", "the consent of the Treasury" and "the concurrence of the Treasury" are used indiscriminately; but they will be taken care of by the ordinary administration of government.
There were years of complaints that our statutes were over-complicated, unintelligible and inflated. Those complaints came to a head in a notable debate in another place which led to the setting up of the Renton Committee. It was a very powerful committee and it made a number of valuable suggestions. What have we seen? I have looked at the statute book. The Renton Committee reported in 1975. In 1976 there were 86 Public and General Acts running to 2,096 pages. A decade later there were only 68 Acts but they ran to many more pages. The figure was 2,780. That is because no notice has been taken of the proposals of the Renton Committee and because we continue to stuff an overblown statute book with flatulent phrases like "with the consent of the Treasury" and many others.
46 I do not doubt that that issue too will be considered in another place, because the argument in that respect came to a head on what has now become Clause 40, which is concerned with finance, and finance is, of course, a particular concern of the other place. I trust that when the Bill comes back to your Lordships' House every one of those phrases will have been struck out, as well as the injustice that I have ventured to identify in Clauses 12 and 17.
§ Lord Meston
My Lords, although improved, the Bill remains, as the noble and learned Lord. Lord Elwyn-Jones, said, essentially an enabling Bill which confers wide powers and promises a great mass of as yet unseen regulations. Throughout the Bill's passage, that state of affairs and method of legislation has been justified by the noble and learned Lord the Lord Chancellor in the name of flexibility. Therefore the concern must remain that such flexible and wide powers could be used, or misused, in the future in ways that are restrictive of the legal aid service—that is, restrictive of the availability of legal aid or restrictive of the type of representations to be made available. I hope that those fears are misplaced.
As a practising lawyer I should like especially to pay a respectful tribute to the great efforts of the noble and learned Lord, Lord Ackner, and others, in their debates upon the provisions relating to remuneration. However, it remains a matter of regret that at the end of the day the Government were shy of an explicit statement on the concept of fair remuneration. But it will at least be thanks to the cogent advocacy of' the noble and learned Lord, Lord Ackner, that the Treasury will be aware of the message which he sought to convey: that the continuing confidence and goodwill of the legal profession, which is essential to a future functioning of the legal aid system, must he retained because it is ultimately in the public's interest.
§ Lord Renton
My Lords, in view of the comments made by the noble and learned Lord, Lord Simon of Glaisdale, your Lordships may think that the less I say the better it will be. Nevertheless, I feel obliged to say that this is the first major Bill that the noble and learned Lord the Lord Chancellor has presented to the House. It is a Bill which he inherited and is now an even better Bill than it was when he first introduced it. In my opinion the fact that it is an improved Bill is largely due to his open-mindedness. He has not been able to accede to all the proposals that have been put forward for the Bill's improvement but he has been able to do so in respect of some important ones. I should especially like to acknowledge the importance of the "purpose clause" which has just been accepted. I should also like to acknowledge, especially in view of what the noble Lord, Lord Meston, said, that the Lord Chancellor has provided that there should be not less than two members of the Bar on the Legal Aid Board.
As regards the general effect of the Bill upon our profession, I shall obey my noble and learned friend Lord Hailsham of Saint Marylebone in not repeating the phrase that he wishes never to hear again. However, I should add this point to the arguments already used. Not only will the profession not allow 47 itself to become divided between "superior" and "inferior" but I do not think that the Legal Aid Board, the Lord Chancellor or Parliament could allow the scheme to be marred by the profession not being adequately rewarded for the work that has to be done. It is upon that principle that the success of the scheme will depend.
I support the plea made by the noble and learned Lord, Lord Simon of Glaisdale, about the use of the expression, "consent of the Treasury". The Lord Chancellor has shown wonderful initiative, and, if I may say so, fertility of mind in handling some of the problems which have been put before him. I express the hope that such initiative and fertility of mind may one day be directed towards eliminating not only that phrase but many other unnecessary phrases from the statute book.
The Bill is intended to create, in the light of forty years' experience, a better legal aid scheme and an expanded one. In my opinion it has every likelihood of so doing. But we shall await with interest—I hope with not too much anxiety—the 50 or so regulations that have to be placed before Parliament, some of which we shall have the opportunity to discuss in this House.
§ 5.45 p.m.
My Lords, I am compelled to rise on this occasion not only because, as a Spaniard once said, "In the heart of every peasant there lies a lawyer; and in the heart of every lawyer, however urbane, there lies a peasant", but also because I feel justified in speaking as I have read every word of the proceedings thoughout the Bill's passage. I must say that I have been deeply saddened. The reason for my sadness is that there is no distinction in principle, as your Lordships are aware, between the Bill and a national health service Bill; save inasmuch as this Bill provides its customers with a learned legal service as opposed to a learned medical service. If, during the passage of a national health service Bill, the only people who took part in the proceedings were doctors, nurses and paramedics, the first people who would be on their feet saying, "Oh, well they would say that, would'nt they?" would be the lawyers. I make that point but I recognise that there are many exceptions. The noble and learned Lord who spoke on the Bill looked at it thoughout the proceedings from the point of view of the customer as, in many respects, did the noble and learned Lord, Lord Simon of Glaisdale.
Therefore I put forward the following pleas to my noble and learned friend. First, I ask that, when the Bill proceeds to another place, he should do everything in his power to ensure that the committee considering the Bill does not contain too many lawyers. Secondly, he should ensure that, when consideration is given to the commissioning of the committee the majority of people on it should be those who are concerned with the benefits that the Bill is intended to provide rather than those who are only concerned with the provision of those benefits. I do not think that the functioning of the committee would be harmed by so doing.
§ The Lord Chancellor
My Lords, I do not wish to take up much of your Lordships' time because your Lordships have been most generous in your remarks about the Bill. However, I should like to say at the outset, in reference to the point just raised by my noble friend, that, for my part, when the Bill passes from this House I am happy to commit it to the wisdom of those in another place and leave to them the choice of who may consider it there. I do not think it would be wise for me to express any view upon the matter. All I can say is that I am sure it will be considered with wisdom.
I should like to thank all noble Lords who have taken part in the proceedings on the Bill. I say that whether noble Lords have spoken in support or against a position that I have taken up; my thanks are equally warm. I am glad that I can say that it was not only lawyers who took part in the proceedings. It is of course true that the discussions were largely in the hands of lawyers but we were fortunate enough to have interventions from time to time from those who are not lawyers. I shall not mention particular names because there are many of them and I might miss someone out. However, I am glad that those who took part who were not members of the legal profession came from all parts of the House.
The Bill, as the purpose clause that your Lordships have just approved now makes clear, is to provide a framework. It is that framework which justifies and makes necessary the number of regulation-making powers that have been a feature of legal aid legislation from the start. The way the matter has been addressed in your Lordships' House has sometimes suggested that that was a novel and rather poor invention of mine. Far from that being the case, the legal aid system has always proceeded by having primary legislation which provided for a great deal of subordinate legislation. I suspect that whatever government are in power, however unexpected the result will be very much the same.
I believe that the framework provided by the Bill is excellent. Those who talk, as some have done, about a second-class service are doing a great disservice to the honour and reputation of those solicitors and barristers who over the years have provided and still provide an excellent legal aid service to the less well off. I can think of nothing more likely to damage the morale of legal aid practitioners than that suggestion.
I believe that in sending the Bill to another place your Lordships can do so confident that the legal profession as a whole, including those whose services may be much in demand for commercial purposes and for others, will be willing to participate in providing a level of service under the legal aid framework that will continue to command the respect of all who require it.
A number of important changes and improvements have been made to the Bill with your Lordships' assistance. I am grateful for all of that. I am grateful for the kind things that have been said about me. I have not yet mentioned anyone specifically. I propose to make an exception in the case of my noble and learned friend Lord Hailsham. He has a special place. As my noble and learned friend said, he had responsibility for a good deal of 49 the Bill when he held the office which I now have the honour to hold. I am grateful for the fact that he has been willing to play such a constructive and helpful part in these proceedings. It must be difficult for him to see someone as inexperienced as I am trying to pilot through the Bill. He has shown no such feelings. On the contrary, he has shown the magnanimity of spirit, help and support that we have all come to know and expect of him.
The noble and learned Lord, Lord Elwyn-Jones, also a predecessor of mine in this office, has always been extremely helpful. I am grateful to him for that. His support has in no sense been a second-class service but one I have much appreciated, although, of course, we do not see eye to eye on everything.
I mention those two noble and learned Lords especially because the position from which they speak is, in a sense, special. However, I wish to extend my thanks to all your Lordships whose efforts, I hope, will bear fruit in an even better legal aid system for the future than we have had in the past.
On Question, Bill passed, and sent to the Commons.