§ 6.20 p.m.
§ Lord Irvine of Lairg rose to call attention to the proposals of the Lord Chancellor of 12th November 1992 in regard to eligibility for legal aid and to the alternative means of achieving savings proposed by the Law Society and the Bar Council; and to move for Papers.
§ The noble Lord said: My Lords, I am grateful that so many noble Lords have elected to speak in the debate tonight. I am also grateful to the many bodies that have participated in the lobby of Parliament today. They have matched the gravity of their concerns by the quality of the papers that they have provided.
§ I predict that the unifying theme of this debate will be that it represents the last chance to persuade the noble and learned Lord on the Woolsack—our Minister of Justice, although by a more antique name —to hold back from destroying access to justice. The plea to him from this Dispatch Box tonight will be to become an advocate for justice and not for Treasury imposed cuts. The plea will be for consultation, not for haste. The plea will be to examine now, over a short period, with everybody concerned for justice (the 276 bodies that have participated in the lobby of Parliament this afternoon) the alternatives to the cuts that are now proposed.
§ Let us consider what is at stake. I doubt whether any of your Lordships could believe that, if the body blow to legal aid planned for 1st April is not warded off now, it will ever be undone by this Administration. I doubt whether anyone in your Lordships' House could seriously contemplate the noble and learned Lord returning to this House on some future occasion and announcing: "This Administration has now turned the economy round; the public finances are in sound order; I will be restoring the eligibility limits to the level at which they were before 1st April 1993". If that were held out as a possibility I, for one, would rather think—and in antique terms, I suppose—that "You can tell it to the marines".
§ The principal charge against the noble and learned Lord is that he has chosen the worst way of making savings in the legal aid budget. Eligibility cuts combined with contributions from those who are close to the income support level will in practice take close on 40 per cent. of households out of legal aid altogether.
§ It is to the eternal credit of the late Lord Elwyn-Jones that in 1979 the free income limit for eligibility before which applicants are not obliged to pay a contribution benefited 79 per cent. of the population. The 10 years from 1979 to 1989 saw a steady erosion in access to justice. Households eligible for legal aid declined from about 81 per cent. to 54 per cent. So 4.3 million households fell out of cover with the proportion of the eligible adult population falling from 79 per cent. to 49 per cent. The figures would be even worse if we could calculate the effect of the capital limits. During the period 1979 to 1990 households entitled to legal advice and assistance on income grounds alone fell from 70 per cent. to 44 per cent.—a fall of 15.3 million in those eligible—leaving only 39 per cent. of the adult population covered against 67 per cent. in 1979.
§ On 12th November, the noble and learned Lord announced his cuts to this House. In summary they are: first, to reduce the free income limit for eligibility from £3,060 per year to the equivalent of the income support level, £2,213 per year. Equivalent changes are to be made to criminal legal aid and to legal advice and assistance—the green form scheme. Secondly, the allowances against income made in respect of dependants are to be cut by 20 per cent., so that they too are to be reduced to the corresponding figures for income support. Thirdly, legal advice under the green form scheme will no longer be available for those with incomes above the free limit. Fourthly, the fraction of income above the free limit taken in contribution will be increased from one-quarter to one-third. Fifthly, and finally, contributions in civil and criminal legal aid will last for the whole length of the case instead of for one year and six months as at present.
§ I do not doubt that the noble and learned Lord will say, so I will say it for him, "Many a mickle makes a muckle. I have to save over the next three years £43 million, then £110 million, then £173 million, and what a great prize that will be. And even after that my 277 legal aid budget will rise from an anticipated £1,107 million in the current financial year to £1,284 million in 1993–94, to £1,407 million in 1994–95, and to £1,528 million in 1995–96."
§ The cost of justice is rising. But politics are the language of priorities. When the noble and learned Lord replies, I hope he will tell the House what priority he gives to justice. Why is it that never before has any government reduced the free limit to the level of welfare benefits? That is what this Government are about to do.
§ The noble and learned Lord's plans have been generally condemned. They represent the worst conceivable way of making cuts in the legal aid budget. It is clear—I am fortified by independent commentators such as the Rowntree Foundation—that it is a pipe dream to expect those whose incomes are close to the income support level to be able to contribute to the cost of their legal aid. The effect of reducing free limits to income support level and of exacting one-third of disposable income above that level would be to make legal aid unaffordable to the great majority of those required to make a contribution. At least 37 per cent. of households which, on the Government's own figures, will either have to pay a contribution for the first time or pay a greatly increased contribution, will in practice be taken out of legal aid altogether. That is the stark reality. Do the Government accept that prediction? What are their predictions? Do they have any predictions? Can we be told what their predictions are, so that we can measure the Government's predictions against the experience of future years as it unfolds?
There was a paragraph, which I have to confess I found chilling, in the article "Paying the price of justice" by the noble and learned Lord in The Times of 22nd January. I quote:
Here, as elsewhere, people must consider their priorities, and in particular whether proceeding with litigation, with its inevitable uncertain outcome, takes precedence over other financial demands and other ways of dealing with the problem they face".
§ Is that the justification for reducing our legal aid system to a rickety ambulance to pick up only the poorest of the poor? For that is the reality. The Citizen's Charter is the humbug. These cuts debase the Conservative manifesto commitment to enable people with limited means to have access to legal services and debase it to weasel words.
§ There has not even been a pretence at prior consultation on these cuts: not with the professional bodies, not with the voluntary sector, not with the consumer bodies, not with a single one of all the bodies that have lobbied Parliament today. Nor, as on previous occasions, has Parliament been given any opportunity to discuss the proposals in advance of the Government going firm on them. And why? I suspect because these cuts are not based and could not be justified on any rational principle other than to ensure that legal aid expenditure does not exceed the provision for legal aid set out in the Supply Estimates.
The professional bodies sought consultation. The reply last December was that questions relating to eligibility were among the issues on which the Lord Chancellor could not commit himself in advance. The
relevant factors were said to go far beyond the special concerns of these bodies, but they could make representations as to how the legal aid budget could be otherwise contained to the expenditure limits laid down. Those bodies did respond. They came up with a convincing package of economies for the coming year, including a voluntary freeze on legal aid pay rates at the levels established in April 1992. The reply to that offer was breathtaking. It was that the noble and learned Lord,
had already been considering your original claim for a 7.3 per cent. increase in the rates and had arrived at the view that no increase would be appropriate in April".
I wonder whether the noble and learned Lord could tell us whether the public expenditure survey was really prepared on the assumption that there would be no rise in legal aid rates.
§ The rest of the proposed package of alternatives was designed to make economies by reducing the level of lawyer attendance in court, although the quality of justice as a result would inevitably be to a degree adversely affected. Nonetheless, that was preferable to the disaster threatened by the eligibility cuts.
§ It seems that the position of the noble and learned Lord is this: "I am not going to consult on these cuts in advance, not with you, nor with Parliament. I was going to freeze your rates anyway and, as far as the rest of your package goes, I have heard it discussed before and you can get on with it anyway if you like". That is no way to conduct our affairs, to debate our priorities or to develop a co-operative strategy for legal aid. I ask: has the noble and learned Lord asked the body whose duty it is to advise him on legal aid—the Advisory Committee on Legal Aid—to give him its views on his cuts, and will he inform us what its views are?
§ The Government are not upholding access to justice. They will not consult. They will not listen. At the same time they are denying millions their hearings in the courts. They reject out of hand serious proposals from bodies of good will. They consume us with despair.
§ 6.34 p.m.
§ Baroness Hamwee
My Lords, it is an irony that in November 1989 there was an announcement of a new approach to eligibility in response to figures prepared by the London School of Economics which showed that 14 million people had lost eligibility over the previous 10 years. According to the Law Society—I do not believe that its figures have been seriously challenged—the changes announced by the noble and learned Lord the Lord Chancellor mean that a further 14 million people will be affected.
It is perhaps a temptation to see the question of legal aid purely as a lawyer's issue, but, in his comprehensive introduction to the debate in which he set out the issues so clearly the noble Lord, Lord Irvine, rightly referred to the lobby of Parliament which has taken place today, a lobby not primarily by lawyers, but by consumers and clients.
The noble and learned Lord the Lord Chancellor recently spoke, in a lecture to the Royal Society of Arts, of promoting debate. Perhaps I may quote his words: 279One of the real problems in this area … is the difficulty of extending the discussion away from those who operate the system and opening it up to those whom the system serves".Those whom the system serves are willing to take part in a consultation and, as has been said so clearly, they are sad that they have not been given that opportunity. They have, of course, made representations.
MIND is one of the organisations that has been in correspondence with the Lord Chancellor. It tells me that in cases involving mental health tribunals 30 per cent. of applicants are more likely to be released if they are represented. That is a very stark example of the requirement for representation. MIND has taken up with the noble and learned Lord the question of ABWOR contributions and welcomes the assurances that have been given, which I hope can be given to the House, that those contributions will be dealt with in the way they are now; in other words, that they will be assessed not on an annual basis but by the solicitor at the point of advice and will therefore be achievable. If not, as the correspondence has demonstrated, those who are detained and who consider applying to mental health tribunals may have to find a sum in the order of £350. That point may be solved, but the Green Form Scheme, which is integral to the whole arrangement, will go, and that must concern us all.
We cannot help but be affected by the examples of the effects of the reductions. The introduction of community care on the same day as these changes may be introduced is an irony. Carers and users of services will be given new legal rights but almost certainly in some cases will be unable to exercise them.
Immigration is another example of which I have heard. If an immigrant's income is low enough for him to obtain legal aid, it will be too low for him to bring his spouse to this country. If he is over the limit, he will not be able to obtain the advice that he requires. It takes little imagination to understand the variety of problems, for instance, in the matrimonial area where a well-heeled husband has the means to fight a wife who has little in her own name. I did not have the imagination to realise that VAT had added £8 million to the expenditure on legal aid over the past year. I hope that we can have an assurance that that is not to be taken into account in the figures as it is a question of circulation of money.
The clock will be against all of us this evening. I do not think we shall be given extra time despite the number of words it takes to address the noble and learned Lord each time that we wish to do so. However, I must refer to a report made recently by the National Audit Office on the administration of legal aid. I do so not only because the Printed Paper Office went to such great lengths to find it for me yesterday, but because it expresses concern at the limited awareness of legal aid. If one adds to that the increasing refusal rate and the fact that applicants who may be given an offer of legal aid then find that they cannot make the contributions—contributions which will now continue for the life of the case, and a case can take years —one's concerns become greater.
280 The National Audit Office also commented, referring to a study by Wolfson College, Oxford, into the reasons for the increase in the legal aid bill:Almost half this increase was attributed to the extra time spent preparing cases or attending clients; and almost one quarter was attributed to increased waiting time in court".There are other noble Lords who can speak more eloquently than I of the need to increase efficiency in the system and of the impact, for instance, of litigants in person in increasing numbers appearing in our courts.
Finally, I come to the crude point of cost benefit analysis. So many questions have been raised about the cost-effectiveness of the proposals. We must look at the inefficiencies within the system. The legal profession must look to itself, but it is not just a matter for the profession. I realise that the Woolsack must be an uncomfortable place on occasions. I appeal to the noble and learned Lord. I know that he will not want to be known merely as doing the Treasury's bidding in times which we all recognise as difficult. I am sure that he will want to be known as the defender of access to justice.
§ 6.40 p.m.
§ Lord Alexander of Weedon
My Lords, perhaps I may first apologise for the fact that, owing to a long-standing commitment which I cannot avoid, I have to leave shortly before the end of the debate.
We have an increasingly acute problem as to how to fund legal services for those of moderate means. The cost of legal aid has risen sharply and is forecast to exceed £1.5 billion in 1995–96. So legal aid is now 1 per cent. of public expenditure.
In one sense we can say that this is not an exorbitant price to pay for a fair system of administering justice. But in reality, with strong competition for public funds and an anxiously high level of public sector borrowing, it is quite inevitable that the Government should seek to limit expenditure. So I acknowledge that it is no easy task for my noble and learned friend the Lord Chancellor to decide where cutbacks and restrictions must come. But I have the gravest qualms about the chosen route.
In civil cases it will inevitably mean that many people will just not be able to pursue their legal rights. And it will affect them in areas of basic concern: housing, family law, immigration and claims for personal injuries. Nor is it practical to suggest that people could choose to pay substantial contributions to litigate at the expense of meeting other basic needs. Many will quite simply be priced out of the market. But the market out of which they will be priced is the market for justice.
In criminal cases the cuts will lead either to courts disregarding, as I suspect they might, the prescribed contribution levels or to a significant increase in the number of unrepresented defendants. Either approach is unsatisfactory.
We would all, I suspect, subscribe without hesitation to the principle that everyone should have a fair right of defending themselves in court. We would all, I think, recognise that legal rights which are incapable of enforcement are illusory. I am glad that we made our manifesto commitment to enabling 281 people of limited means to have access to justice. I hope that we will stand by it. I once heard an American bishop say, when preaching a sermon to the Supreme Court of the United States:Society either defends across the board, or it ceases to be civilised".It is because I believe that our society and government strive to be civilised that I hope every conceivable alternative will be explored before these cuts are put into effect. I was grateful to my noble and learned friend the Lord Chancellor for receiving a number of us last week to urge on him the damage that would be done by these cuts and the importance of considering alternatives. It was clearly helpful that at this meeting he expressed the willingness of his officials to debate with the Law Society in detail other ways of making the required savings.
I know that the Lord Chancellor has expressed doubts about the effectiveness of the package which the Law Society, with the concurrence of the Bar Council, has so far proposed. I can only hope that his officials will look positively and imaginatively at these and other measures. We must not be afraid to think radically as to how to make legal services less expensive. There is still waste in the law, a point alluded to by the previous speaker. In the criminal courts there is scope for improved listing and for dealing with unopposed adjournments and committals with reduced attendance by lawyers. These steps are generally accepted to be sensible. It is so much more preferable to accelerate them than to cut off people from access to the courts.
But I believe that we must be prepared to be far more radical in our whole approach to legal procedures. Urgent work is needed on civil procedures. There is a strong case for extending the small claims jurisdiction to £5,000. I suspect that my noble and learned friend is not out of sympathy with that idea. In larger cases, trial judges should be asked to take immediate control of the case as soon as proceedings are issued. They should be given a mandate to ensure that the machinery for bringing any particular case to trial keeps costs firmly in proportion to the sum at stake. They should also be encouraged to promote alternative dispute resolution. It is no good our legal system seeking to be scrupulously fair if it is not cost-effective and if people cannot afford to use it.
In the matrimonial field, my noble and learned friend the Lord Chancellor has himself expressed the view that mediation and conciliation should replace adversarial litigation. This has been welcomed by very many of great experience in this area. But it will be an idle aspiration without resources being channelled to counselling and mediation. The proposed cuts in eligibility will lessen the opportunity for people to take advantage of existing pilot services.
The whole issue of funding legal services is intractable and is becoming ever more urgent. We must seek to tackle it on a broad, coherent basis. Is it not time that the law centres, which give a quite invaluable service, were drawn into the legal aid scheme as part of the overall provision of service? Is it not time that the contingency Legal Aid Fund, 282 which we at Justice have been advocating for many years and which we raised yet again recently with the Lord Chancellor's Department, should be established? Is it not possible for the Government to play a part in more widely promoting schemes of legal expenses insurance?
The entire profession—government, judiciary, barristers and solicitors—has a duty to tackle the problem of costs on a co-operative and not a confrontational basis. I sense that the profession is willing to play its part. So, too, are some extremely impressive, able and dedicated consumer groups. I hope that the Government will reach out to them and will join them in this work constructively. It is vital to avoid these cuts.
§ 6.48 p.m.
§ Lord Taylor of Gosforth
My Lords, like my noble friend Lord Alexander of Weedon, I recognise that the marked increase in the cost of legal aid and the prospect of even greater increases require some curbs to be imposed. I also understand the difficulties of the noble and learned Lord the Lord Chancellor in finding some acceptable way of keeping the expenditure within bounds. But I have to say that to proceed as he proposes by cutting eligibility is wrong in principle.
Broadly speaking, there are two possible approaches: to cut eligibility or to spread the available fund less generously. The first course no doubt has the advantage of simplicity. It is easy and cheap to administer since little monitoring is required. But it involves, in my view, an abdication of responsibility to a large section of those for whom the legal aid scheme was devised. Even before these draconian cuts were proposed, there had been a gradual decline in the proportion of our citizenry entitled to legal aid. Now, at a stroke, it is proposed to reduce dramatically the numbers eligible. The Government's own estimate is that 37 per cent. of households will be affected. There is concern not only for those who will become totally disentitled but for those whose required and increased contribution will effectively put them out of court even though they are technically eligible for assistance. I consider that not only deplorable but a surprising proposal from my noble and learned friend on the Woolsack.
It will be recalled that the principle on which the Courts and Legal Services Bill was said to be based was greater access to justice. The Lord Chancellor may not have achieved a wholly unopposed passage of that Bill, but time and again he justified it by the principle of access to justice. He won much praise from the media and the public on that account. Now we find that under some financial pressure the first thing to go is access to justice. The large band in our community who will become ineligible for legal aid under these proposals will effectively have either no access to the courts or access only as litigants in person. Those who, with legal aid, would have pursued their cases or defended those brought against them but would not do so unaided will quite simply have been denied justice.
What of those who proceed as litigants in person? Experience shows that so far from saving overall costs 283 by denying legal aid, costs may be incurred which legal aid would have avoided. There are many cases in which a litigant in person ploughs on when legal advice would have persuaded him that he had no case. He is likely to take more of the court's time partly because he may have difficulty in presenting his case intelligibly and partly because the court needs to be more indulgent to him in case there is some point that he has not been able to articulate. The Master of the Rolls tells me that already about 20 per cent. of the sitting time in the Court of Appeal (Civil Division) is taken up by litigants in person.
I turn now to the second principle on which my noble and learned friend on the Woolsack presented the Courts and Legal Services Bill for which again he received much praise. The principle was increased competition for the provision of legal services. His idea was that the more providers of legal services there were, the better and the cheaper the service would be to the public. But now the effect of those substantial reductions in legal aid eligibility and of the franchising proposals will inevitably be to cut competition. There are many firms of solicitors, and especially those whose partners have a social conscience as well as a law degree, whose practices primarily serve those eligible for legal aid in their locality. There is a risk that these proposals will make their type of practice unsustainable. They will go to the wall and only larger and less accessible firms will be able to take on legal aid work.
I am well aware that any plea based on the prospect of lawyers losing out is usually treated with derision, if not glee. But I am not talking about the fat cats with corporate clients. Quite the contrary; I am concerned about those modest firms which cater for the less privileged members of society.
What then is the alternative to cutting eligibility? The Bar and the Law Society, as has already been mentioned, have put forward measures which would achieve substantial savings. It is true that they would involve a less satisfactory service being provided, but a second-class carriage is better than no transport at all. It is also true that the savings their measures would effect have not been quantified and it may even be that they would fall short of the savings necessary. Nevertheless, I would earnestly urge my noble and learned friend the Lord Chancellor to pause and give these measures full consideration.
I strongly believe that there are also other cost-cutting measures which could be considered short of slashing eligibility. A review of the remuneration rates may well reveal methods of reducing over-expenditure and giving incentives to expedition rather than the reverse. It was with those considerations in mind that the Master of the Rolls and I wrote jointly to the Lord Chancellor last week asking him to explore all other methods of controlling the escalation of legal aid expenditure rather than proceeding with his present proposals. I urge him again to do so.
§ 6.55 p.m.
§ Baroness David
My Lords, I shall be singing rather a different song. I do not want to speak about legal aid specifically, but about one possible way forward which would reduce the very high costs of legal aid which are alarming the noble and learned Lord. I am speaking of Mediation UK and the community mediation schemes that are now functioning in a number of our towns and cities.
Mediation is based on the principle that negotiation between two parties often works better when there is a neutral, non-coercive third party to be responsible for the procedure and ground rules and, if necessary, to guide the discussion. But the content of the discussion remains the disputants. They are asked to begin by agreeing to basic ground rules but, unlike arbitration, they do not agree to be bound by the third party's decision. Mediators have no powers and as far as possible they get the parties themselves to put forward solutions based on their interests not their positions.
Mediation can be used for quite serious and complex disputes, but it works best before positions become entrenched. The position is the opposite of that of the courts. It is not adversarial, it is conciliatory. It works on the principle that both sides win about 90 per cent. of what they want rather than one winning and the other losing. There is a better chance that they will be, if not friends, at least on speaking terms at the end of the affair. Mediators act for both parties, which lawyers are not allowed to do.
Mediation can take place in various contexts—indeed in, almost any context—where it is in the interests of both sides to settle. Disputes between neighbours, whether about noise, children, animals, gardens, parties or whatever and victim/offender relationships are the kinds of contexts in which mediation can take place; of course, there is also matrimonial conciliation. There may be agreements on custody and access to children. The hope is to prevent a case coming to court.
Perhaps I may give an example. A couple newly retired from the Army claimed that plants on an overhead balcony were dirtying their windows and that the plants' actress owner was muddying the shared hall as she came in from jogging. Lifestyle incomprehension was diagnosed. Solution: plants trimmed and clean shoes left in the hall in return for no radio-playing when the couple got up at 7 a.m.
The mediators are generally volunteers specifically recruited and trained by the community schemes themselves which will employ certain paid staff, perhaps two. Before they start to work on cases the volunteers will undergo training. Referrals come from the parties themselves, from community agencies like citizens advice bureaux, statutory agencies such as housing and environmental health departments, the police or solicitors. Most of the cases are potential subjects for civil litigation. Many involve violence, harassment, damage or verbal abuse which can result in criminal prosecution.
There has now been about eight years' experience of such schemes in this country, but longer abroad. There are about 30 community mediation schemes 285 working across Britain at the moment. Where a scheme is started by a particular agency such as a local authority—MEND in Hammersmith and Fulham is an example—there is a slightly more professional type of community mediation involved, but there still exists steering committees of volunteers and the mediation is carried out by local lay volunteers so that the differences between the two systems are minimal. They all belong to the same umbrella organisation, Mediation UK. There is no doubt that the cost is infinitely less than it would be if the cases went to court. The funding is from charitable trusts, local authority donations, central government programmes like Urban Aid or Save the Cities, and often by a combination of all such funding.
The advantages of these schemes over the juridical processes are many. The most important is that it leads to a better outcome which is more forward looking, preventive of further trouble and able to deal with issues ranging beyond the immediate legal claim. They also encourage collaboration rather than opposition and educate people in the skills of peaceful negotiation and attitudes of tolerance.
I was anxious to speak in today's debate to seek some pronouncement from the noble and learned Lord on his commitment to these schemes and to learn whether he is willing to encourage them and to provide some funds for that purpose. He has given some encouragement. In May 1991 in a lecture to the Association of Law Teachers, and in July last year when he spoke at the Royal Society of Arts, to which the noble Baroness, Lady Hamwee, referred, the noble and learned Lord recognised that adversarial litigation, with its cost, delay, complexity and stress was not necessarily the best way to resolve disputes. He suggested that the state had a role in funding alternatives to litigation and that officials would devise gateways or tests through which people would be channelled towards the most appropriate method, such as mediation, for their specific problem.
We recognise that not all cases are suitable for mediation, but enough of them could be diverted to it to take quite a chunk of work from the courts. Research and routine monitoring show a higher rate of satisfaction among civil disputants. I should like to stress the need to spend a small amount of money in order to make these greater savings. The noble and learned Lord may be reluctant to commit himself to funding local services at once while the idea is relatively new (although there has been eight years' experience of it) but that is a longer term aim. For the present, will he back up the favourable statements that he has made by funding development and training workers for Mediation UK, for which there is a great demand? Will he also fund two or three local projects, with research, to allow the idea to prove itself? I hope that he can give a favourable response to this plea when he responds to the debate.
§ 7.1 p.m.
§ Lord Hutchinson of Lullington
My Lords, as a retired practitioner, I speak in this debate only to express my sense of outrage at the proposed 286 unprincipled destruction of our painstakingly constructed system of aided access to justice in England and Wales. Every lawyer here today has over the years made his or her contribution to this system—and why? It is because, surprisingly to the cynics—and there are some in this House—we have two clear beliefs: first, that the ultimate guarantee of the citizens' human rights and individual liberties is the availability of the independent lawyer, and secondly, that the first casualty in any authoritarian regime is that individual lawyer. He can be removed by persecution or state control but also, in a more subtle way, by controlling his remuneration and his pattern of work so that he can no longer operate. Ultimately, the struggle for human rights is conducted in the courts where the citizen seeks justice, above all in the magistrates' and Crown courts and then in the High Court when seeking judicial review.
Our determination has always been, as in the National Health Service, that access should be to the best, not to the worst, service, and that all lawyers covering cases (of infinite variety) should contribute, remunerated strictly on the basis, properly monitored, of work actually and reasonably done. Now, at a stroke, the Lord Chancellor intends to destroy all that and, unbelievably, to abolish the Green Form advice eligibility so that defendants will be forced to defend themselves against an always-represented prosecution, resulting inevitably in many a false plea of guilty and, I fear, in many a miscarriage of justice.
Those getting a lawyer will find an advocate receiving a standard fee—a fee set unilaterally by the noble and learned Lord himself and at a level that can only just attract the least able, least conscientious and least experienced advocate. It is a fee that takes no account of the length or complexity of the case, of its preparation or of the difficulty or otherwise of the law applicable. It is a staggering return to the days of my studentship.
Of course, legal aid is demand led. The bill for it has increased, as it has for the prisons and the Crown Prosecution Service. However, the noble and learned Lord resolutely refuses to find out why this is so. A Law Society survey found that 25 per cent. of the increase is due to the incompetent listing procedures, for which the noble and learned Lord is himself responsible. Obviously, there are other reasons, such as the extension of a defendant's rights under the Police and Criminal Evidence Act, the duty solicitor scheme, the tape recording of interviews, the pre-trial reviews, the increasing complexity of new offences and the incidence of long fraud cases. But even now it accounts for less than 1 per cent. of public expenditure. Is that too much for the very basis of our free democracy? It is far less than the £2 billion to £3 billion that was lost in one day in the incompetence of Black Wednesday.
Already I am told that a circular has been issued stating that community sentences are not to be regarded as involving a deprivation of liberty justifying the granting of legal aid. If true, that is a monstrous instruction. The purpose of those sentences is to replace imprisonment by a penalty demanding significant restrictions on personal liberty. One must 287 ask: can it be proper (in a system based on judicial independence) for access to justice to be subject to such blatant and unilateral executive control?
Here in the Chamber we have a remarkable attendance of lawyers sharing a proven passion for justice and access. No fewer than three who have held the position of chairman of the Bar Council are present, each with long experience of assistive representation in the magistrates' and Crown courts. How is it that the noble and learned Lord, who has no such experience, continues to follow a course of confrontation, losing thereby the enormous goodwill of the profession? How is it that we have the spectacle of the new Lord Chief Justice coming to this House publicly to plead for sufficient judges to allow the scandalous queue of citizens seeking judicial review to have the justice they demand? How is it that today we hear that noble and learned Lord describe the Lord Chancellor's proposals as deplorable?
When the notorious Green Papers appeared four years ago, I expressed my suspicion that the hidden agenda was to clear the criminal courts of the independent lawyer. These proposals, I fear, will achieve just that. If the noble and learned Lord's ultimate aim is the creation of a system of salaried public defenders to mirror the state prosecution of the CPS, it would be fairer and franker to say so now. I invite the noble and learned Lord to do just that and to enable those whose practices are founded on the promotion of human rights to take their skills and their concern elsewhere.
§ 7.8 p.m.
§ Lord Donaldson of Lymington
My Lords, until I read these proposals with regard to legal aid and, above all, until I appreciated what their consequences would be on the ground, I never for one moment thought that it would be necessary to say in your Lordships' House that justice is not an optional extra in a society which is based upon the rule of law. But I feel that that point has to be made for justice lies at the root of internal law and order just as defence forces lie at the root of external law and order. That is not, of course, to say that justice cannot be achieved in more than one way, but whatever way is chosen it must ensure universal access to the courts of law.
It so happens that we have chosen to base our system of justice, which has existed over several centuries, upon a partnership—a partnership between the practising legal professions on the one side and the courts and the court service on the other. It has proved remarkably cost-effective. But we need to recognise what we have been doing. We have been allowing, and indeed encouraging, lawyers, mostly at the expense of the private client, but not exclusively, to do part of the work which it is for the courts to do or see that it is done. If we are to abandon that approach over a wide segment of disputes, then we have to look elsewhere for a method whereby that fundamental duty of government to provide justice can be discharged.
One way,—highly inefficient—would be to produce a large number of extra judges and a large number of court officials and to rejig all the procedural rules so 288 that the courts were operable—if I might use that word—by any litigant of reasonable intelligence and fortitude in person. I cannot believe that the Government would propose to do that. We could of course, as I hope will happen anyway, follow up the suggestions made by the noble Lord, Lord Alexander of Weedon. In fact they are being followed up. Efforts are being made to streamline courts and processes. But unless and until that makes the presence of lawyers unnecessary over the fields about which we are talking today, any denial of an opportunity of having legal advice and representation amounts to a denial of justice itself.
The noble Baroness, Lady David, talked about mediation. I am sure that we are all supporters of mediation, provided that there is a reasonable chance that it will avoid subsequent litigation. But mediation is not the direct and fundamental responsibility of government. That is to provide justice in the sense of decisions which bind the parties to a dispute.
I hope that the noble and learned Lord the Lord Chancellor will give serious consideration to the alternative package suggested by the practising professions. It may or may not entirely balance out as a matter of figures, but it is remarkable for the fact that the lawyers are saying, "Give us a pay freeze." That is not in their interests, but in the interests of their clients. That point should be emphasised. It is something which should be examined with care.
Perhaps I may make two other points of a slightly different nature. We have here a new contribution rule. Let me say at once that the old rule whereby one contributed what one could over a period of a year, and six months in the case of criminal legal aid, seemed to me to be the most complete nonsense I had ever heard. Everyone except the very poorest in the land has not the slightest hesitation in going out and making a hire purchase contract which extends over three or even five years. Why should it be in any way different in the context of legal aid? But then the Government come forward with this incredible proposition that one contributes to legal aid over the duration of the case. What on earth has that to do with the litigant's ability to pay, or indeed a moral or any other obligation to pay? I doubt whether the department has sufficiently thought out what that could mean in some cases. One might have a gentleman with a very urgent case which may affect others and which has to be dealt with by judicial review. He obtains legal aid. He applies for leave and is given it instantly. Such is the urgency that the court says, "Right, we will hear this case tomorrow." There is no question of a minimum of a year here. He should, with a bit of luck, be able to get away with a £5 contribution. The thing is absurd.
On the other side of the coin, a case which does not have that degree of urgency—it may have no degree of urgency —may wait about, I regret to say, for years. Is it to be said that that assisted litigant has to pay far more because of the delays that have occurred?
I have one last point—I appreciate the constraints of time. There is not one word in the proposals which recognises the real advantage of being within the Legal Aid Scheme, whatever one's contribution, when it 289 comes to the other side's costs. The legally assisted litigant is protected from having to pay the other side any more than is just and equitable. The proposals take that protection away from that part of the population which falls outside the scope of legal aid. It would cost the Lord Chancellor nothing to extend the protected provisions of legal aid upwards as indeed should be done.
In the debate on 17th November at cols. 590–591 of the Official Report, I made the same point. The noble and learned Lord, at col. 610, and I summarise, said that the courts have a discretion. They should exercise that discretion. With the greatest respect—I say it with sorrow—that does not represent the law of England. The courts indeed have a discretion, but it is one that has to be exercised judicially. There is no authority whatever for the proposition that when awarding costs against an unsuccessful litigant one is entitled to have any regard as to his means to pay. If the noble and learned Lord the Lord Chancellor wants that alteration, as I do, then he must procure a change to the rules.
§ 7.17 p.m.
§ Lord Mishcon
My Lords, whether the noble and learned Lord the Lord Chancellor realises it or not from the speeches that have been made, perhaps I may say—I believe that it will have general acclaim—that he is happily possessed of a mind which is the admiration of us all. A mind which is also receptive to change and persuasion would have the greatest admiration of Members of the House, wherever they may sit. My effort this evening will be directed towards persuading him that he has such a mind.
Perhaps I may put this into the context of a seven-minute limit. It is a good idea, in my view, to concentrate on at least one issue. To me, that issue is the Green Form Scheme. I wonder whether your Lordships realise what the purported change is. It is that anyone with earnings over £60 per week will no longer have the benefit of that scheme. We are therefore taking out everyone but the utmost poverty-stricken of our citizens from a benefit which has been superb for goodness knows how many thousands of people, many of them illiterate, wandering around not knowing how to equate some of their problems with a possible remedy at law. Many of them are wives who are perplexed over a marital problem and they just want to discuss what their rights may be. Your Lordships will readily realise that those problems often involve children.
The lawyers have been able and willing to give preliminary advice which has so often helped to solve the problem completely. I wonder whether the noble and learned Lord realises that very often solicitors are advising under the Green Form Scheme on how to fill out an application for legal aid. If these proposals take effect that will be denied to anybody who happens to earn, under the calculations of the Legal Aid Scheme, more than £60 per week.
Where do I think—I ask this with the deepest respect—that the noble and learned Lord has gone wrong? Obviously from the speeches that have been made this evening he will realise that there is general 290 criticism in this House of his taking eligibility as the way to save money. First, I shall ask him not to impose upon our people the destruction of the Green Form Scheme, which I believe will mean a saving of some £11 million per year. I hope that we achieve more than that, but if we can maintain the present position of the Green Form Scheme some use will have been made of this debate and to the delight of us all the noble and learned Lord will have shown some flexibility of mind.
I believe, as others have said, that the other thing which the noble and learned Lord has done—I say this with the deepest respect—which is wrong is not to look at the whole question of advice as it is now given to our citizens whose means do not enable them to go to private lawyers and pay private lawyers' fees.
We have said before in this House that there are institutions which have done a tremendous amount of work and are prepared to continue doing it; namely, the citizens advice bureaux and the law centres. Nobody has got those organisations together with the Law Society and the Bar Council to say, "All right, if there must be economies, perhaps we can fulfil a service, but for heaven's sake look at the problem broadly and see to it that we, the CABs and the law centres, are properly funded". At the very time when, among other proposals that the noble and learned Lord makes, the Green Form Scheme is to go, citizens advice bureaux are closing down throughout the land because of lack of funds and because the local authorities do not have the grants which enable them to pass on those funds. Law centres are similarly affected. I do not wish to use exaggerated language but it is crazy to look at the matter piecemeal rather than as a whole.
In my final minute I turn to the package which has been offered. I emphasise that it is a package which from the lawyer's point of view does not give them any advantage whatever. In fact, it imposes a willing sacrifice which they are prepared to make. People should sit around a table rather than have a confrontational debate. Even at this moment the Law Society and the Bar Council, with the officials of all three organisations, should be determined to do one thing; that is, to save the legal aid which is now being destroyed. I wish that my friend and a friend of nearly everybody in this House, Lord Elwyn-Jones, were here to make a speech with regard to the defence of a matter which was his life's work.
§ 7.25 p.m.
§ Earl Russell
My Lords, Machiavelli once remarked that two things are essential to a state: good laws and good armies. We have just heard the Government think the better of a Treasury driven attempt to reduce the supply of one. I hope that we may look forward to hearing the Government think the better of a Treasury driven attempt to reduce access to the other.
As the noble Lord, Lord Irvine of Lairg, said, this debate is about priorities. I find it very difficult to think of priorities which could be higher. As everyone 291 here has occasion to know, allegiance is according to law. If we weaken respect for the law, we must be putting a strain on allegiance.
If we are to have respect for the law, it is not enough to think of it as something which comes down from Mount Sinai. That is a divine and not a human pattern of legislation. To have affection for the law and allegiance to it we need to think of it as something to which we may derive some benefit. That means that we need to have access to it and we need to think of turning to it for remedies.
As the right reverend Prelate the Bishop of Liverpool said in a very important debate on 17th November, it is necessary that people should learn to think of the law as their friend. It underlines the importance of that point but he was making it in defence of a law centre in Toxteth, Liverpool.
The need for legal aid has increased with the number of laws. As the noble and learned Lord, Lord Simon of Glaisdale, pointed out, the number of laws has recently increased considerably. If you are to appreciate the importance of legal aid, you need to look at the fear and bewilderment on the face of an innocent defendant facing a criminal charge. The law is extremely technical and sometimes arcane. People need help to understand it. You do not realise how important those technicalities are until you see a serious criminal case being handled by someone who has no training in the law. You then understand it very well indeed.
There is a danger to people who have no legal aid. We have heard a great deal recently—more than I should have liked —about miscarriages of justice. I cannot believe that leaving people without the assistance of the law would do other than increase the risk of miscarriages of justice. There is clearly a mistake here about affordability. This Government have a tendency to underestimate the amount that can be spent from the public purse. Equally, they overestimate the amount that can be spent from the private purse. It is not inexhaustible.
What shall we have instead if we do not have legal aid? The National Association of Citizens Advice Bureaux has said that a great deal of extra work will come its way. That is undoubtedly true. If it is to do that work properly, it will cost money. The savings would be diminished. A great many people who are in the position of advising others, of whom I am one and I should declare an interest, will find a vast amount of work coming to them which they deal with at present by saying, "What you need is a good lawyer". That happens often in the course of a professional life. If you cannot refer people to a good lawyer, you have to try to advise them yourself and you will not do that nearly as well. As the noble and learned Lord, Lord Taylor of Gosforth, said, that will take more of the court's time and that will cost money.
We agree entirely on these Benches with everything that the noble Lord, Lord Mishcon, said about the vital importance of the green form. When we are considering miscarriages of justice we should consider the cost of imprisonment which, as we are often reminded, is considerable. I should like to know how 292 many mistaken imprisonments a year it takes to use up all the saving which the noble and learned Lord hopes to achieve by these measures. He hopes to save £173 million. That, I admit, is serious money but it is not very serious money. It does not need a great deal to go wrong to wipe out that saving altogether.
When the noble and learned Lord considers the proposals from the Law Society I hope he will not respond in the way of the famous professor at the University of London who once said, "This proposal originates with the teachers of the subject, which I regard as most improper". I shall leave the House with the words of Magna Charta:To no one will we sell, to no one will we deny or delay right or justice".I know that was always an aspiration, but I hope it is not an aspiration which has been abandoned.
§ 7.31 p.m.
§ Lord Rix
My Lords, may I first thank the noble Lord, Lord Irvine of Lairg, for this opportunity to debate an important issue. I ought as a second point to acknowledge that the noble Lord and others of your Lordships are infinitely better equipped than I to understand and debate both the legal processes and the financial convolutions of the legal aid system, even though I am wearing the right tie. I have heard the legal aid system described as one designed to give ordinary folk who do not understand the complexities of modern life free access to lawyers who do not understand them either but who can at least talk about them elegantly.
I must apologise for having to appear twice nightly today. That is something I have not done since 1950. I am appearing twice today because the noble Lord, Lord Renton, who is a previous chairman of MENCAP and a lawyer to boot with all the relevant experience, unfortunately has a previous engagement.
In my blacker moments I wonder why people with learning disabilities should need lawyers when they have so few legally enforceable rights. However, that is a rights debate to be renewed on another occasion. A more positive approach is to recognise that the unceasing flow of legislation about employment, training, social services, education, health care and other matters offers people with disabilities opportunities which can be converted into rights. This is a process which, in an era of tight restraints on public expenditure—and I fear some prejudice—sometimes requires access to legal advice and legal processes.
My colleagues in MENCAP did some homework for me and I make this speech secure in the knowledge that I have been well briefed. However, I am conscious that those colleagues had surprising difficulty finding out just what the new rules are. We are getting close to the change and such details as who will qualify and who will not seem at the moment not to be wholly clear; and what is beginning to be clear is not yet wholly logical.
As I understand it, people on income support—including the extra income support paid to people with disabilities—will retain entitlement to the full benefits of legal aid. The more severely disabled who have disability benefits in addition to income support 293 seem to me to be more at risk. For simplicity I shall use the old benefits terminology. Those getting mobility allowance because they cannot walk, or have comparable difficulties in getting around, will have that mobility help ignored, as indeed they should. The extra money was intended, after all, for the extra costs of mobility, not for paying lawyers' bills.
Those with attendance allowance—again I use the old terminology—because they need constant supervision or care are not, it seems, protected where advice under the Green Form Scheme is concerned. I hope that this is a misunderstanding on my part or a mistake on the part of those devising the rules. I can see no conceivable justification for seizing the care benefit of someone severely enough disabled to need that care in order to pay the bill for advice about that person's slender rights.
I shall illustrate that point. Michael gets attendance allowance. He cannot lift a spoon to his lips, drink from an ordinary cup, hold onto someone when they lift him, sit in an ordinary chair, wipe his nose or cough to clear his throat. He needs, in addition, a great deal of personal care in relation to all those very private processes which most of us for most of the time carry out in private and think nothing about. Another young man whom I shall call Alvin also has attendance allowance. His condition severely affects his behaviour and while physically capable of many everyday activities he needs constant supervision or the simplest of processes and encounters can turn into disaster. Are people such as Michael and Alvin to be told that they have to choose between care and legal advice because they cannot have both? They would not understand that, but neither would I; nor, I suspect, would many of your Lordships.
The logic of disregarding attendance allowance seems to me absolute. However, and lest I am faced with the cake argument in relation to the bread of green form legal advice, let me add that there is no way that local advice centres and national voluntary bodies could fill the gap left by the diminution of legal aid. Local centres are cutting back and closing. National voluntary bodies are having to consider priorities and that may well reduce their ability to maintain that scratching-at-the-surface of legal and related advice which they at present manage.
If it does not sound too dramatic, I propose to finish by saying that I am asking for justice. We have heard that word today on several occasions. There is a price to pay for that, but the price should be paid by those who can afford it and not by those who cannot.
§ 7.36 p.m.
§ Baroness Mallalieu
My Lords, I declare my personal interest as a member of the Bar in practice almost exclusively in what Horace Rumpole describes as,the bargain basement of the law where barristers live high on the hog on the rich pickings of the legal aid system".I am grateful to the noble Lord, Lord Irvine of Lairg, for providing the House with an opportunity which would otherwise have been denied to Parliament by this Government; namely, a chance to discuss these proposals which are of direct concern not just to 294 lawyers but to some 14 million adults who are likely to be directly affected by them. It is quite extraordinary for such far-reaching changes to have been announced with no prior consultation with the profession or other interested bodies and no debate in Parliament until now.
What the noble and learned Lord the Lord Chancellor proposed on 12th November of last year is not just a cost cutting exercise to make financial savings such as other government departments are being required to make and which we all unhappily accept are necessary in the economic mess in which we find ourselves. These are proposals which strike at the heart of the Legal Aid Scheme and go to its underlying principle that no citizen shall be denied access to justice because he or she is unable to afford the cost of his case. That principle, however imperfectly it operated in practice, was one to which until 12th November of last year most of us believed this Government were committed.
Just as it must surely be one of the hallmarks of a civilised society that its citizens have access to necessary medical treatment regardless of ability to pay, is it not also the mark of a civilised society and a just one that all its citizens have access to the law? These proposals, if implemented, would change the Legal Aid Scheme from one which tries to provide that access to one in which help is available only to the very poorest in the community. The proposed changes in eligibility in effect render legal aid unaffordable to a large proportion of those with incomes above the level of income support who now qualify—those, as I understand it, with a disposable income of over £43 per week.
On the present eligibility limit, the figures in the review of eligibility of the noble and learned Lord the Lord Chancellor published as recently as 1991 show that approximately 20 per cent. of those offered legal aid subject to a contribution turn it down. They do so because they are unable to afford the contribution. If these proposals are introduced that percentage must rise dramatically. A substantial number of people will without question be unable to afford the new contributions, especially as they will no longer be limited by time as at present but will continue throughout the case.
To offer legal aid subject to a contribution which cannot be met is to offer nothing. The madness of these proposals—I think that that is not too strong a word—is apparent to anyone who practises today in legal aid litigation. Because this debate is limited in time, and with so many with expert knowledge still to speak, as a legal aid practitioner I select just two examples of that madness.
Legal aid under the Green Form Scheme would, as I understand it, no longer be available for those with incomes above the free limit. That scheme is one of the most cost-effective areas of the whole of the legal aid system. Advice given by high street solicitors often knocks on the head at an early stage proposed litigation which has no prospect of success. It also resolves disputes by early and effective advice in matters which would otherwise drift into actual litigation, with consequent costs in time, money and 295 court time. Above all else, it avoids a great deal of human misery. It is a particularly effective scheme because many solicitors today do work over and above the limit which is permitted and for which they never hope, expect or indeed do receive remuneration. What the proposed change means, quite simply, is cases going to court on matters which could have been dealt with out of court with the help of short, swift and inexpensive legal advice at the outset and, alternatively, that wrongs will go unrighted.
Secondly, the proposals mean that many people who know that they cannot afford to contribute will be discouraged from applying for legal aid at all. Others who are granted conditional legal aid will find themselves unable to keep up contributions and have their certificates revoked and their representation withdrawn, with consequent delays and waste of time and money. It also means, above all, more litigants having to represent themselves.
I wonder whether the noble and learned Lord the Lord Chancellor has forgotten his early days at the Bar. He must have sat in court listening to cases while waiting for his own to come on. Most of us have. He must surely have seen inarticulate, sometimes ill-educated, largely unprepared and almost always frightened or anxious and ill-at-ease litigants in person struggling to present a case against a qualified and properly-briefed opponent. No matter how hard the magistrate or judge has tried to ensure fair play, were there not occasions when he, too, longed to get up and help, to point out the strengths in a good case which was floundering because of the lack of proper presentation and legal knowledge? If the noble and learned Lord has never had such an experience he must be unusual. After April 1993, if his proposals are adopted, experiences like that will, I suspect, become commonplace.
The reality is that those who cannot pay but do not qualify for full legal aid will face a stark choice. Either they will be denied access to the courts or they must represent themselves, usually at a disadvantage, against a qualified barrister or solicitor on the other side.
A way has to be found to save money. We all accept that. However, it is difficult, if not impossible, to think of a way of inflicting more permanent damage on the legal aid system than these eligibility proposals will cause.
I am conscious that every moment that I speak I prevent another speaking for his full allocation of time. Therefore, I simply say that the profession has come up with serious and hard-hitting suggestions which, although they cause great anxiety to those of us who practise in this field, must surely be better than the alternatives which are proposed by the noble and learned Lord. I hope that he will listen and will reconsider. If he will not I am afraid that that will demonstrate that all that has been said by this Government about their concern for service to the public and with the Citizen's Charter philosophy will be exposed as a sham.
§ 7.44 p.m.
§ Lord Ackner
My Lords, I have been told that it is always a pleasure to follow the noble Baroness, Lady Mallalieu, but better still to catch her up. Having just done the former I look forward to doing the latter.
Perhaps I may remind your Lordships of the following facts. The principle adopted by the Rushcliffe Committee and subsequently accepted by Parliament as long ago as 1949 was that legal aid should be directed both to the poor and those of moderate means. Secondly, some 34 years later—nearly 10 years ago—the Government, in their written response to the report of the Royal Commission on Legal Services—the Benson Commission—(Cmnd. 9077) remained consistent in their approach. They said:legal aid should be available to assist those of small or moderate means, by giving them the same chance to pursue or defend their legal rights as those in a position to instruct lawyers privately; provided that it has been shown that there are reasonable grounds for pursuing or defending the right in question".Thirdly, some three years ago at the Second Reading of the Courts and Legal Services Bill my noble and learned friend the Lord Chancellor said that thekeynote is to improve access to justice for all who need it".He identified three elements, and expressed the relevant one in these terms:an efficient and effective scheme to make public funds available to those who need legal services and cannot meet the cost themselves".—[Official Report, 19/12/89; col. 122.]Fourthly, last year the Government's manifesto stated that the party was committed:to enabling people with limited means to have access to justice".However, last week in answer to a starred Question by the noble Baroness, Lady Hamwee, my noble and learned friend dramatically downgraded that formula. He said that he believed that the package that he had announced in November represented:the most certain means of achieving the necessary control, while at the same time protecting the position of the poorest in society".—[Official Report, 26/1/93; col. 1136].Thus, although having a reasonable ground for pursuing or defending a right of action, there must now exit those of small means, those of moderate means and even the poor unless they come under the heading of the poorest in society. "Oh what a falling off was there!"
Reality of course must be faced. I agree, as I am sure will my noble and learned friend the Lord Chancellor, with the following observation contained in paragraph 12.26 of the Benson Commission Report:The public funding available for legal services depends on the financial resources which the government of the day is in a position to allocate to them in the face of competing demands such as education, health, defence and many others".It continued in the following paragraph:We emphasise that if there is to be proper provision for legal services in future and balanced decisions are to be made a regular flow of information concerning needs and the estimated cost of different options will be required. It will be necessary for the operation of the publicly-funded legal services to be constantly monitored and there should be a continuing programme of research into these subjects".297 From what has been said it appears that my noble and learned friend has failed signally in carrying out that advice. There is one option available to him at present which apparently is in receipt of very trite consideration.
I accept that my noble and learned friend is anxious this year to save about £43 million, a not inconsiderable sum. However, I suggest that we must keep it in perspective. After all, the Government are contemplating spending more than £36 million on prosecuting under that strange piece of legislation, the War Crimes Act, men over 70 in respect of offences allegedly committed over 50 years ago.
I have once earlier this week expressed with diffidence the view that in the Asylum Bill the Government were suffering from forensic myopia by not considering the impact of their proposals in producing an appellate process that would merely add to the demand on resources. I suggest that that is exactly what is occurring in the current proposals. Defendants in criminal cases have no alternative but to go to court. They are taken there by the prosecution. If they do not qualify for legal aid—and most of them will not—then they go unrepresented. So do defendants taken to court in civil cases. That will clog up the work of the court staff. It will clog up the work of the courts. It will extend trials enormously. Valuable resources now in short supply will again be under the most impossible pressure.
I urge my noble and learned friend to think again. I urge him on this occasion to think more far-sightedly, because without vision the legal aid system, referred to by my noble and learned friend Lord Denning in the first debate in which I took part in 1986 as the most formidable product of legal reform in his time, is bound to perish.
§ 7.52 p.m.
§ Lord Spens
My Lords, I am one of those people to whom the noble Baroness, Lady Hamwee, was referring. I am one whom the system was designed to serve. It will be no surprise to your Lordships to know that I have been on legal aid for two-and-a-half years. I am still on legal aid and I expect that to continue for a further two to three years if the proposals do not abrogate it.
Given that factor, and the fact that the noble and learned Lord the Lord Chancellor has written another consultation paper on long criminal trials, and given the fact that that paper is largely based on the Guinness trials and the experiences of Mr. Justice Henry, the trial judge, and his utterances after the trial, this debate is important. In that paper the Lord Chancellor proposes that penalties should be further added to the defence for various time wasting misdemeanours if that can be said to be the case.
At the beginning of next week I shall publish a response to that paper. It is a detailed analysis of the timetable of the Guinness trials. It will show that one of the principal delays in that set of hearings was legal aid and its associated problems. A total of 116 weeks was lost, or involved delay, as a result of legal aid.
There are three sides to the legal aid triangle. There is the base line which is essentially the cost of the 298 services —the courts and the judges—for which I suspect there are no further resources. Indeed, they are probably underfunded so there is no hope there. There is of course the legal aid line which we are debating. However, there is a third line. It is the prosecution line.
I wish to relate a story from my experiences from the Guinness trial. Your Lordships may think that I shall be somewhat unpopular for what I am about to do. During those hearings the prosecution fees were exposed in open court, largely because of discussion on legal aid. Let me explain what they were. For the number one prosecuting counsel, John Chadwick QC, (now Mr. Justice Chadwick) the fee was £550 per hour. For the number two QC, Mrs. Barbara Mills. (now Director of Public Prosecutions) the fee was £450 per hour. For the number three QC, the fee was £350; and for the sole junior it was £250 per hour. On the basis of an eight hour day and a five day week, £550 per hour gives a payment rate of approximately £1 million per year. Collectively those four prosecuting counsel were receiving £64,000 a week. For three halcyon months those persons receiving fees of £64,000 faced nothing—two unrepresented defendants.
I believe that it would have continued like that, and the trial would have perhaps been even worse. However, the strain smashed my heart and I had to have an operation. As a result I applied for legal aid. I was granted legal aid having spent half a million pounds already. I was granted legal aid on condition that I made a contribution of £100,000. However, living was preferable to not having £100,000 and so I accepted that.
I now come to the squaring of the circle. I had two barristers who today have received between them approximately £40,000 in total in interim payments. They still have not been paid for their work of over a year ago. They do not expect to be paid for at least another six months. That imbalance in the structure is a major injustice. Unless questions are asked about the cost of prosecuting, both the cost of the prosecuting authorities themselves and of counsel, the system breaks down. What is happening is a bidding up of fees by the prosecution and the prosecution authorities to a level that is breaking the back of legal aid. That is absorbing money about which there appears to be no control. Let us remember that £64,000 faced nothing for three months.
It is a crazy situation to have on our hands and to do nothing about it. If the noble and learned Lord the Lord Chancellor wishes to make cuts I suggest that he makes cuts in that area, and that area quite deliberately. By doing so he will save many people from losing the possibility of legal aid.
§ 7.58 p.m.
My Lords, in contributing to the debate, I am sure it comes as no surprise to noble Lords that I am sharply reminded of the well-known phrase about angels fearing and fools treading. However, it is important that a view of the position as it is seen by the public should be expressed. That is a view of which my noble and learned friend the Lord 299 Chancellor must take heed. He has total responsibility for the provision of legal services to every single man, woman and child in this country.
The hour is late. I shall not consider the issue of changing the rules as regards eligibility for legal aid. I wish to stick to what the Law Society and the Bar Council rather unattractively call, in a public relations phrase, the alternative package. Before I do so, I wish to bring forward one general point which I find disturbing. It relates to a general assumption that has been made by every single speaker except the noble Lord, Lord Spens, whose speech interested me greatly. It is the fond assumption made by most lawyers—and I am not being cynical when I suggest this—that access to their services and to the courts equates with access to justice. I am sincerely sorry to say that it is my belief that over the past few decades that assumption has come increasingly to be treated with, at best, wide-eyed astonishment. Those who practise in the law will say, "Oh, that has ever been the cry of the disgruntled litigant", but the problem is that, even when we win at law, we lose because of the appalling burden of costs. The suggestion by the proponents of this Motion that my noble and learned friend the Lord Chancellor is attacking the interests of justice by the consideration of cost is nothing other than absolutely monstrous.
I find something else absolutely monstrous too. What about the savings from all the proposals in the alternative package—the freeze on legal aid pay rates; the reduction in the number of occasions on which a solicitor's representative attends counsel in court; the removal of the need for solicitors to attend court on unopposed adjournments in magistrates' courts; the reduction in the need for junior counsel to attend court when leading counsel has been instructed; the increased use of cost orders in matrimonial proceedings?
I can add a couple more. What about legal aid costs recovered against the Legal Aid Fund being restricted to party and party costs? What about the better use of solicitors' staff by granting extended rights of audience to suitably qualified Fellows of the Institute of Legal Executives? That would save costs. What about the Legal Aid Board assuming greater responsibility in determining whether legal aid should be granted or not and not, as frequently happens, limiting the grant of legal aid to referral to a barrister for an opinion as to the merits of the applicant's case? That would save costs.
What members of the public ask themselves is, "What on earth was the profession doing decades and decades ago, not putting these proposals to the Government in order to contribute to the reduction of the cost of providing legal services to the public? Why do they suddenly come up with this now?" That is worrying in itself. The brief states that, accordingly, the Law Society has itself developed an internal package of legal aid changes which can save £43 million. Accordingly! That should have been done years ago.
I finish by beseeching my noble and learned friend that he should not consider these proposals as an 300 alternative package: they should be looked at on their own merits and carried through notwithstanding any proposal that my noble and learned friend makes on behalf of the Government and of the recipients of legal services in the country.
§ 8.3 p.m.
§ Lord Williams of Mostyn
My Lords, this is an opportune occasion to discuss this important question, for which we should all be grateful to my noble friend Lord Irvine of Lairg. It is a sombre occasion and some of the words that I use will, I regret, be harsh. My regret derives from the regard that I have personally for the noble and learned Lord the Lord Chancellor.
Despite its blemishes, this is a fortunate country in many ways to have a public servant of the quality of the present Lord Chief Justice. Could any fair, reflective mind find any answer to the speech he made? I have spent most of my adult life, as many of your Lordships have, in the practice of the law. We were all doing work at legal aid rates because we thought it was our duty. I never thought that I should live to hear that both the Lord Chief Justice of England and the Master of the Rolls would feel driven to write a letter to the noble and learned Lord the Lord Chancellor in the general terms in which the noble and learned Lord, Lord Taylor of Gosforth, spoke.
I wish to identify two themes which seem to be common to most of your Lordships. The first theme is that legal aid expenditure cannot continue to rise out of control. No one suggests the opposite; every practitioner has been saying it for years. The second theme is that the noble and learned Lord the Lord Chancellor, in his high estate, should be the champion of access to justice for the poor and needy. If that second theme is true—and I believe that it is—then the poor and needy, those of no account, will look in vain because their champion has left them.
The bill at the moment for 1991–92, on the department's own figures, is about £1,149 million. I regret to say that I do not believe that the Lord Chancellor's Department efficiently controls the expenditure of those vast sums. I do not believe on any basis of evidence and experience that it administers itself efficiently. I give an illustration. The expenditure on Crown Court legal aid in the year 1991–92 was £188.3 million. Recovered by way of contribution was £1 million. There is no one who practises in the criminal courts who does not readily concede that some defendants in the Crown Court could contribute something sensible far in excess of £1 million. It is not the Bar Council and the Law Society which are charged with the duty of recovering sensible contributions, it is the Lord Chancellor's Department.
In 1987–88, the gross expenditure on legal aid was about £536 million. The amount has not simply leapt up overnight, it has increased significantly and substantially during a period when the Lord Chancellor's Department had the control and commission to exercise a proper responsibility over those sums. What has happened now, I regret to say, 301 is that there is a mean-minded, mean-spirited—which may be worse —attempt to claw back something from those who simply have nothing to offer.
I shall not deal with the grosser examples because my noble friends Lady Mallalieu and Lord Irvine of Lairg outlined them fully. Let me give a modest example. A man who is married with two children aged 12 and eight, who has a gross income before tax of £12,000 a year—which is not wealth untold—will have to provide a contribution to his civil legal aid of £700 a year. No such family would be able to lay its hands on £700. If any of your Lordships thinks that that is an exaggeration, I should be willing to give way to hear the basis of the alleged exaggeration.
§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, perhaps the noble Lord will allow me to do that. What allowance has he made in respect of living expenses and so on from the gross income to which he has just referred?
§ Lord Williams of Mostyn
My Lords, the full allowances contemplated by the noble and learned Lord's scheme. If my suggested figure of £12,000 as a gross income for a married man with a wife and two children aged 12 and eight is incorrect, then as always I shall be happy to be corrected. But I think correction will not come. A person finding himself in those circumstances will have no rights. He will hardly understand them. He will be afraid to contemplate them. He may well be a defendant in a civil case or a defendant in a criminal case. What is he to do? I stress that I say nothing in a spirit of personal animosity towards the Lord Chancellor, but that is not the way to make savings.
There are other savings to be made, some of which the Law Society and Bar have put forward. I know of no other body of workers that has offered a pay freeze; that is, a reduction in income of 3 per cent. or so. Committals in magistrates' courts are an expensive waste of time; listing in magistrates courts is an absurd farce; and listing in the crown courts is nonsensically expensive and counter-productive. As the noble Lord, Lord Alexander, said, judges in civil cases must be able to dictate the course and speed of litigation, and they and judges in criminal courts must be more interventionist. All of those offer a reasonable spectrum of ways to save money.
I urge the noble and learned Lord the Lord Chancellor to consider whether there has ever been a situation in this country where it has been necessary for a letter of the nature to which I alluded earlier to be sent. If it is unprecedented in its seriousness, as I believe it is, I ask him to reflect upon it and to think again.
§ 8.12 p.m.
§ The Lord Chancellor
My Lords, I am also grateful to the noble Lord, Lord Irvine of Lairg, for the opportunity to discuss this matter. It is not the first debate that the House has had since the changes I proposed were intimated to Parliament. The noble Lord, Lord Mishcon, gave us an opportunity to discuss them on 17th November, to which reference has already been made.
302 The basic facts that underlie the debate are that in 1979 the cost of legal aid was less than £100 million. In the year ending in March it will be £1,100 million. Over the past four years alone legal aid expenditure has risen by 130 per cent. Those figures take account of VAT on legal services. That rate of growth cannot be allowed to continue. I believe that most of those of your Lordships who spoke understand that point of view. If it were to continue, expenditure would be nearly £2,000 million by the mid 1990s.
A comment was made about lack of consultation. I explained my proposals in some detail to the Law Society at its annual general meeting in Birmingham last October. I said:Every extra pound for legal aid means a pound less for the NHS, for schools, for social security or for the infrastructure of the economy".It is important to underline those words.
In the measures I announced I attempted to safeguard access to justice to the greatest extent I could and to target the available money to where it was most needed. For that reason I have not in any way reduced the scope of the scheme. Legal aid will be available as far as subject matter is concerned in exactly the same cases as now. I fear that at times there may have been some misunderstanding. It may be helpful if I set out the measures that I propose. Detailed regulations will be laid so that the noble Lord, Lord Rix, will have an opportunity to examine the detail of the rules in due course.
To deal with the substance of the proposals, the lower limit of disposable income beneath which legal aid is available without contribution will be aligned with the income support rate for a single adult. Currently, the free limit for civil legal aid is an annual disposable income of £3,060. If the change had been made in the current year that limit would have been set at £2,213. From April, taking into account the uprating of social security benefits that will occur, the limit will be £2,294. Equivalent changes will be made to the lower limit for criminal legal aid.
Legal aid dependants' allowances will be aligned with income support dependants' allowances. In 1993–94 the amount allowed for a spouse will be the difference between the income support rate for a couple and that for a single adult. In 1993–94 this will be £25. For a child the allowance will be the appropriate income support age-related allowance. Contributions will be increased from a quarter of disposable income—I emphasise disposable income —above the free limit to one-third and will continue for the life of the case.
§ Earl Russell
My Lords, will the noble and learned Lord agree that these proposals increase the incentives to welfare dependency?
§ The Lord Chancellor
My Lords, if the state provides a benefit on a means-tested basis there is always the possibility of an argument that where that is a right there may be a tendency to seek to qualify by bringing oneself into that position. To that extent the point applies to any means-tested benefit.
303 Advice and assistance under the Green Form Scheme will be available only to those who qualify without a contribution. In 1993–94 the qualifying limit will be a weekly disposable income of £61.
The next point I make is of importance. Assistance by way of representation, to which the noble Baroness, Lady Hamwee, referred, will be available without contribution to those with disposable incomes of less than £61 and, on a contributory basis, to those with disposable incomes over £61 and below £147 a week. Therefore, assistance by way of representation is not regulated by the same rules as the Green Form Scheme. Contributions will be higher, again one-third of disposable income, and will continue for the life of the proceedings. But particularly in view of the letter I have received from MIND that has been released to the press I stress that it is not my intention that the availability of assistance by way of representation be limited to those who qualify without contribution. The upper qualifying limit for civil legal aid will, for 1993–94, be pegged at its current level. That is £6,800 and £7,500 for personal injury cases.
It is important to remember that there is no question of legal aid being reduced in the sense that the budget is in any way cut. Even after the measures I have taken, expenditure will rise on the estimates to £1,528 million in 1995–96. That is an increase approaching 40 per cent. over the next three years. Over the same period we expect the number of acts of assistance, that is, grants of legal aid or advice or assistance, to rise from just over three million in the current year to about four million. The number of people assisted is set to rise. That is an increase approaching 30 per cent. In 1979–80 there were fewer than one million acts of assistance. There is nothing in these figures to support the assertion that the Legal Aid Scheme is being destroyed.
The figures I have given put into context the suggestions that the changes will affect as many as 14 million people. To qualify for civil legal aid an applicant must not only qualify financially but also show that the proceedings he or she wishes to take or defend are worthy of support on a proper basis. In 1992–93 we expect some 373,000 civil legal aid certificates to be issued. Clearly, 14 million people will not be affected because only a fraction of that number ever become involved in civil legal proceedings. Criminal legal aid is available to anyone who requires help with the costs of his or her case and where the interests of justice require it.
There is no upper financial limit—I want to emphasise this because I had the impression from some of the things that were said about the proposals that this had not been appreciated—for criminal legal aid. Some people will be asked to pay a contribution who until now would have received free legal aid for criminal proceedings, and contributions will be higher. I believe that in practice it is unlikely that my proposals will have more than a marginal effect on criminal legal aid. In 1992–93 we expect there to be some 600,000 orders made for criminal legal aid. Currently around 95 per cent. do not pay a contribution and 75 per cent. are "passported" to free 304 legal aid because they are recipients of income support or certain other benefits. The noble Lord, Lord Williams of Mostyn, suggested that it was feasible to obtain much more by way of contributions from those who receive legal aid in criminal proceedings. I can assure him that the courts do their best in the matter. It may be that better procedures could be devised, but the people who are clients in criminal legal aid cases are not very easy to persuade to part with substantial money for contributions. Of course, the amounts at stake are rather small and therefore the cost of collection is often quite a high proportion of the amount at stake. There are particular exceptions to that, of which we have had an example this evening.
Green Form advice and assistance will be given to about 1.1 million applicants in 1992–93. After the changes, we expect over 1 million Green Forms in the next year. It is true that some people will no longer be eligible for this sort of help, but the average bill in 1991–92 was £82 and I believe it is not unreasonable to expect those of moderate means to pay this sum.
§ Lord Mishcon
My Lords, before the noble and learned Lord continues, what is his description of "moderate means", especially in relation to the Green Form?
§ The Lord Chancellor
My Lords, my description, for the purposes of the statutory scheme, of those of moderate means is those who will be eligible for particular assistance on the basis of a contribution.
§ Lord Mishcon
My Lords, I wonder if the noble and learned Lord, with his usual courtesy, will forgive me for interrupting again. Does he really define somebody who is earning just over £60 per week as a person of moderate means?
§ The Lord Chancellor
My Lords, I have said I believe that in terms of statutory provisions "moderate means" are properly taken as means which result in contributions so far as legal aid is concerned, as distinct from those who have it free.
The overall effect of my measures, so far as civil legal aid is concerned, will be that about 2 per cent. of households will no longer be eligible as a result of the reductions in dependants' allowances. In addition, the pegging of the upper limit at this year's level will mean that some people who move above the eligibility threshold as incomes increase will not be restored to eligibility. Nevertheless, we estimate that about half of households will continue to be eligible for civil legal aid. More than one-fifth will be eligible without a contribution, and the same proportion will be eligible for Green Form advice and assistance. As I said, there is no upper financial eligibility limit for criminal legal aid. Perhaps I should say in passing, in view of the observation of the noble Lord, Lord Hutchinson of Lullington, that I certainly have no wish whatever to see a public defender system of the kind that he envisaged. What I have sought to do is to ensure that these measures are applied in such a way as to protect, so far as possible, those who need most the legal services in question.
The most needy in our society—those on income support—will continue to be eligible for free legal aid. 305 But it does not follow that the reduction of the free income limit for legal aid will exclude all but recipients of income support from non-contributory legal aid. This is where I take issue with the example given by the noble Lord, Lord Williams of Mostyn. What is important to remember is that both the lower free limit and the upper qualifying limit are disposable income limits. To calculate disposable income for legal aid purposes, allowances are made for tax and national insurance, dependants, housing costs (that is rent or mortgage), community charge or council tax, upkeep and charges, and work-related expenses, that is, fares, subscriptions to trade unions or professional associations and the costs of child minding. In addition, assessing officers have discretion to allow other expenses. The repayment of loans for house improvements and school fees are examples. The list of allowances is comprehensive. It demonstrates that potential applicants for legal aid of moderate means could indeed be eligible, as I have said.
Noble Lords may have seen in the press "before and after" calculations of the effect of the changes for legally aided persons. I would ask your Lordships to consider an example which I have drawn from the eligibility table in the 1992 Legal Aid Handbook. This table indicates that in 1992 a family of a man, wife and two children owning their own home could qualify for legal aid with a gross income of over £22,000 a year. If the changes to the conditions had been made in 1992 and all other things remained equal, this illustrative family would still have qualified with an income of £21,000 per year. However these figures are only illustrative. Eligibility depends on actual income and allowable expenses. Therefore, it is impossible without taking account of actual allowable expenses to arrive at a calculation about how much must be paid in respect of a particular gross income.
Something more than half of those who will be eligible for civil legal aid will be required to pay a contribution. From April contributions will be increased from a quarter to a third of disposable income above the free limit. But, as I have explained, that is after these allowances have been made. Individuals themselves, I believe, must face the financial implications of the action they are taking. If an individual decides that he does not wish to risk his own money I do not see why the taxpayer should be called on to take that risk, assuming that it is a sum which after proper calculations can be afforded.
My noble and learned friend Lord Donaldson of Lymington mentioned that a grant of legal aid gives considerable advantages to the assisted person, notably the protection he is given from opponents' costs. A grant of legal aid is intended to provide a level playing field. The contributory system is one way of ensuring that the playing field is not tilted overwhelmingly in favour of the assisted person. And of course the other side of the litigation—for example, the defendant against a legally aided person who wins his case—does not see that as a particular benefit. My noble and learned friend referred to our exchange during the last debate. I said then, and I repeat, that I believe it to be the law of England that courts have a discretion in connection with the award of costs. 306 That discretion is one which the courts can exercise in a way that Parliament itself has not sought to restrict. Obviously, case law makes it clear that discretion should be exercised fairly or —perhaps it is another word for the same thing—judicially. Certainly I consider that if the court thought a particular disposal on costs was a fair disposal in the circumstances, it would be open to it to do the sort of thing my noble and learned friend has suggested, assuming that that was thought to be fair in all the circumstances of the case.
Following the changes I have announced, contributions will continue for the life of the case. But if an individual is assessed as being able to pay a contribution in one year out of income there is no good reason for him not continuing to pay while the case lasts. I shall be introducing provisions to protect those whose cases drag on through no fault of their own. It goes without saying, but perhaps I should say it nevertheless, that nobody will be asked to pay more than his case costs.
It is important that cases should make progress. One of the very experienced judges, whom I heard speaking some time ago about managing the list in the Queen's Bench Division, explained that often when adjournments were asked for he required the application to be adjourned to the following week so that the lawyer in question could bring his or her client to the hearing of the application for adjournment. In his experience, very often that meant that the adjournment was not in fact applied for at all. That just shows that the clients have an interest in getting on, which is important. I believe it is right that incentives should be given in that way for cases to proceed. But I intend to have provisions in the detailed rules to protect those whose cases drag on through no fault of their own.
There will no doubt be people who choose not to proceed with their legally aided cases, given the contribution they will be asked to pay. The noble Lord, Lord Spens, referred to a case which could have illustrated that. But that is a choice which faces every private client as well. I see no reason in principle why it should not apply equally to a legally aided person who has been assessed as being able to pay a contribution.
I turn now to the proposals that the Law Society and the Bar Council have brought forward. I welcome very much the initiative of the Law Society and the Bar in bringing forward proposals. I have made it plain to the officials and officers of the Law Society and the Bar that what I require is a system that will enable me to meet the budget requirements which I have set out. I have been invited to look at further measures which will enable those to be met.
I repeat what I have often said; namely, that I am prepared to consider with the Law Society, the Bar and everyone else who wishes to contribute to the discussion, ideas for making better use of the money available for legal aid. I acknowledge that there are changes which can be made in the longer term with good effect. The Courts and Legal Services Act was introduced with that in mind and many of those 307 provisions are now available gradually to assist. In relation to the magistrates' courts, changes are also being made which I believe will assist.
I heard some reference to standard fees as fees which would be paid without any regard to the complexity of the case, or anything of that kind. No such system of standard fees is proposed by me. The system of standard fees which I am proposing will apply in bands to cases up to a certain value of work. If the case requires work to be done beyond that value, the case will be paid above the higher level of standard fee. So it is a misrepresentation to suggest that the system I am proposing has the quality that was described.
I am extremely grateful to the leaders of the professional bodies for the work that they have done in putting the proposals together and for their recognition that the cost of legal aid must be contained. I have repeatedly said that in addresses to the Bar and the Law Society. I regret to say that so far the measures that have been proposed will not, I believe, obtain the result that I require.
The element of the package which has received most publicity is the offer of a "pay freeze" for 1993–94. As I indicated in my response, I had concluded, subject to further consultation with the profession, that in our present circumstances a zero uprating of legal aid remuneration for 1993–94 was appropriate, and therefore this proposal of itself would not produce any additional savings over those I had already contemplated. It is perhaps worth mentioning that the rates that I have to deal with year by year do not of themselves control by any means the whole of the legal aid expenditure. A good deal of that is in the control of the taxation processes of the civil and criminal courts. There is also the point that the amount of work which is done is not subject to that particular regulation-making power except to some extent in relation to the standard fee system, as I explained.
The point I want to make is that a zero increase in rates does not necessarily mean a zero increase in the unit costs of the case. I illustrate that by taking the experience of 1988–89 and 1990–91 when the increases in rates for solicitors and barristers for criminal work in the higher courts were 18.9 per cent. and 18.2 per cent. respectively while the average payments of unit costs increased by 31 per cent. and 37 per cent. respectively. So the relationship is not by any means complete between the rates allowed, even if those are zero, and the unit costs in relation to particular cases.
I would like to mention briefly the remaining proposals. The first removes the need for solicitors to attend unopposed adjournments in the magistrates' courts. I certainly believe that if that attendance is unnecessary, it would not properly qualify at present. It may well be that something further could be done in that direction. The second proposal of this type is to reduce the number of cases in which a solicitor's representative needs to attend counsel in the Crown Court and the county court. The third is increasing the number of cases in which silks appear without a junior.
308 Obviously, I want to consider the proposals further. I accept, as the letter from my noble and learned friend the Lord Chief Justice said, that they are put forward in the light of seeking to secure the interests of justice in the system which we have to operate. I was grateful for my noble and learned friend's letter. I believe he was not exactly quoting from it in the speech he made today.
The potential of the proposals I am very happy to consider further. They are certainly worth taking further. But as at present advised, I do not believe that they will come near what I need in order to attain the figures which I require.
These proposals are not new to me. The question of solicitors attending counsel and of two counsel being instructed has been considered over a long period by the efficiency commission which was set up by agreement between the Lord Chancellor's Department, the Bar and the Law Society as a condition of the increase in remuneration which was awarded following some particular types of discussion in 1986. That efficiency commission has looked at the matters very carefully. The present rules—made by the Law Society, as I understand it, in the light of the discussions in the efficiency commission—permit a solicitor's attendance to be dispensed with only on appeals against sentence, committal for sentence and guilty pleas in the Crown court. Those are the present rules, reached after a great deal of consultation and consideration. The two counsel rule and its effects were also very carefully considered as long ago as January 1987. The rules were endorsed by the profession after being suggested by the commission. The results so far have not been very significant. From April 1989 to December 1990—a period that was monitored—only 10 silks had appeared alone in some 3,052 cases.
I shall not deal with the detail of that, but it is worth keeping in mind that the proposals so far made have not been new proposals but proposals very carefully considered. However, I am certainly very willing to consider the proposals further. I am anxious to secure agreement if at all possible, but I believe that the proposals as they stand at present are not likely to meet the needs that I have expressed. The proposals that I have put forward will, I believe, enable me to reach the expenditure target to which I am committed not only for 1993–94, but for the further two years covered by the present public expenditure survey.
I believe that the profession's proposals are worth considering further. Having regard to the time that must elapse between the laying of the regulations and their coming into effect so that people may have proper notice of them, I shall certainly require to lay the regulations soon. In the meantime I am very happy to continue the discussions with the profession and with anyone else who has ideas for arriving at the figures that I require to arrive at within the timescale in question.
The debate has been very useful. I believe that certain observations about the effects of my proposals have perhaps not been sufficiently based on the 309 proposals themselves and I think the detail of them, which I have sought to set out, may help to cope with that.
My attention was drawn to mediation. I have spoken repeatedly in favour of seeking ways to resolve disputes other than through the courts. My primary responsibility is for the ultimate decision in these matters, and the justice system must provide that. I am willing to do anything that I properly can to further other, better ways of resolving disputes. Having regard to the amount of money that is available to me, your Lordships will not be surprised to hear me say that it will be quite difficult to commit money to this when I am seeking as best I can to use the money that I have to secure the maximum amount of legal cover for those who come under the statutory provision.
§ Lord Irvine of Lairg
My Lords, before the noble and learned Lord sits down, perhaps he will respond to the question whether, on the subject of his proposals, he has received any advice from the legal aid advisory committee. If so, will he inform the House what that advice was?
§ The Lord Chancellor
Yes, my Lords. The legal aid advisory committee has tendered advice to me which is very much on the lines that reductions in relation to eligibility or increases in contributions are highly undesirable. It also commends the idea of mediation and other methods of dispute resolution. So far as that diverts people from necessary service in the courts, it will have a beneficial effect, but it is difficult for me to count on that in present circumstances.
§ Baroness Hamwee
My Lords, again before the noble and learned Lord sits down, will he tell the House whether, in his further consideration of the proposals, he will also consult the various agencies in the public sector—those, including his own department, involved in the administration of the courts, the CABs and so on—with regard to the cost-effectiveness of the proposals so that he may be assured or otherwise as to the savings that his proposals are intended to achieve?
§ The Lord Chancellor
My Lords, as I explained, if the proposals are to take effect at the beginning of the financial year 1993–94, it is common sense to lay them in sufficient time for people to discuss the detail of them and be aware of them before they are put into effect. I have made it plain on every occasion, and particularly on the occasion of the debate in this House in November, that I am willing to receive representations or help from anyone. Anyone who wishes to give me representations is therefore welcome to do so. I have received a number of representations, not many of which have shown me a particular way to reach the budget figure that I am required to reach for 1993–94. I live in hope, but time is getting shorter.
§ 8.44 p.m.
§ Lord Irvine of Lairg
My Lords, I thank the noble and learned Lord for his response to the debate. I thank too all noble Lords for participating in it. I beg leave to withdraw the Motion.
Motion for Papers, by leave, withdrawn.