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Mr. Boateng : I resent that intervention as the Mid Thames Fisheries Consultative Council has done its best to provide me with a proper and accurate briefing. A simple typographical error is no cause for the hon. Gentleman to sneer. He should not imagine that anglers come only from
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the country interests that he so stoutly represents. There are many urban anglers and I am determined that their voice should be heard today. Urban anglers are extremely concerned about the cray fish and about the spring viraemia of carp which has forced the closure of a local fishery. A ban exists at the moment--Mr. Morley : I wish to reinforce my hon. Friend's remarks about the way in which anglers are spread across a wide spectrum of society and regions. I received letters from the Appleby and Froddingham angling club, which was formed at the old steelworks and which has one of the largest memberships of any angling club in my region. Its members are all steelworkers and they have expressed many of the concerns that my hon. Friend has put so eloquently about water quality standards and the influence of the fisheries advisory committees. They feel that at present the fisheries advisory committees are not given the influence that they deserve.
Mr. Boateng : I am obliged to my hon. Friend, who has a wealth of experience in these matters which he brought to bear over many hours in Committee. We are grateful to him. He is right that this issue goes right across the board.
In conclusion, one wants a strong voice to be given to angling interests and to see them have proper representation, with means and resources to make their voice heard and to make it count, so that they can deliver the goods not only to anglers and fishermen, whether urban or rural, but to all of us who benefit from a safe, clean environment.
The Parliamentary Secretary to the Ministry of Agriculture, Fisheries and Food (Mr. Richard Ryder) : As my hon. and learned Friends the Minister for Water and Planning and the Solicitor-General know, I have for a long time been an eager proponent of reform of our legal system. If I harboured any doubts about my desires for reform, they were dispelled by listening to the hon. Member for Brent, South (Mr. Boateng) who is--as my hon. Friend the Member for Crawley (Mr. Soames) acknowledges--a solicitor.
Mr. Ryder : As a solicitor he deserves a wider audience. He is a powerful advocate and, if the Lord Chancellor's recommendations in the Green Paper ever come into law, the hon. Gentleman will do very well out of them.
Many important points have been raised during our brief debate, and related issues have also been brought to the fore by the amendments of my right hon. Friend the Member for Woking (Mr. Onslow) and my hon. Friend the Member for Devizes (Sir C. Morrison). The debate will be followed by not only anglers but others who have interests in fisheries. In the remaining time available to me I shall try to answer some of those points.
My right hon. Friend the Member for Woking was concerned that, in the past, fisheries had had too small a voice in the water authorities. I take issue with him on that matter and I should certainly have to deny that that would be the case in the new National Rivers Authority. In addition to the regional fisheries committees, my right hon. Friend the Minister is to appoint a fisheries member to the main NRA board, and fisheries will be represented on the new regional rivers advisory committees. Fisheries will, and must, in recognition of their importance, have a powerful voice. The Government have
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no doubts about the importance of fisheries. That is why they want to ensure, through the Bill, that my right hon. Friend the Minister retains one appointment to the NRA board.My right hon. Friend the Member for Woking was also concerned about the competence of the committees and the NRA to administer fisheries. I have heard that view expressed before, although not particularly widely. It was my impression that the water authorities, with the aid of their regional fisheries advisory committees, had exercised their fisheries function admirably in the past, and I have every reason to believe that the NRA--as an important national body--will have an even greater opportunity to co- ordinate and develop fisheries policies, building on the sound foundation laid down by the water authorities. My right hon. Friend the Member for Woking and my hon. Friend the Member for Devizes tabled a number of amendments. I shall deal with each in turn. Amendment No. 153 aims to give my right hon. Friend the Minister more powers than envisaged under present legislation. Despite the fact that my right hon. Friend the Member for Woking and my hon. Friend the Member for Devizes intend, through the amendment, to give the Minister more powers, I cannot accept the amendment. As I have said, the NRA will be an important and--I stress the word-- autonomous national body, charged, among other things, with maintaining, improving and developing the salmon, trout, eel and freshwater fisheries in England and Wales. That will be the responsibility of the national corporate body. Of course, the NRA will discharge that responsibility through a strong, regional organisation--that is essential given the great diversity of our fisheries.
However, it will be for the NRA to decide the membership of its regional advisory committees, including their chairmen. I stress to my right hon. Friend the Member for Woking that Ministers will appoint members to the NRA main board. I have already referred to the one person to be appointed by my right hon. Friend the Minister for Agriculture, Fisheries and Food. He will co-ordinate the authority's regional fisheries advisory activity and will oversee the way in which the NRA's fisheries responsibilities are being discharged in each of its regions.
Amendments Nos. 79 and 85 would limit the membership of the regional fisheries advisory committes to people who are directly interested in fisheries in a particular area. I have to tell the hon. Member for Barnsley, West and Penistone (Mr. McKay) that the environmentalist to whom he referred would be excluded if the amendment were accepted. If we divided on it, he would have to vote against it.
Only anglers' representatives and riparian owners could be appointed. There would be no place for representatives of netsmen or fish farmers. It would not be possible, as has been the general practice, for the chairmen of the regional flood defence committees to sit on the committees. Nor would it be open to the NRA under amendment No. 85 to include environmental, scientific or any other interests on the committees. I believe that it is essential that the NRA should be allowed the maximum flexibility in establishing these committees to appoint relevant interests on a local basis, according to local needs and circumstances.
My right hon. Friend the Member for Woking argued that the powers to delegate fisheries to the regional
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fisheries advisory committees would be entirely permissive. However, I would have considerable difficulty about accepting the principle that functions should be delegated to the committees, now or at a later date. The RFACs have always been advisory in nature. There has been no suggestion that this advisory nature has been ineffective in the protection of fisheries' interests in the water authorities. Indeed, I believe that the RFACs are widely regarded as having made a highly significant contribution to the conservation and management of fisheries by the water authorities.The question to be addressed is this : how would things change for the better by delegating to the committees some of the NRA's functions? I am afraid that the case for that is still to be made. I am still unclear about what kinds of responsibility might be delegated and how the committees would effectively discharge those responsibilities.
Moreover, I fear that this may result in an undermining of the NRA at both regional and national levels as a new, cohesive and effective national autonomous body. It seems to me that fisheries' interests might not be best served by encouraging the degree of separation implied by specific and executive powers. The great thing about fisheries' interests in the water authorities--this will be much more so in the NRA--is the central role they have occupied in recreational and environmental matters. Fisheries cannot be divorced from water chemistry and quality, or land drainage and flood protection--or matters of access and river basin usage. My worry is that the amendments could tend to diminish that role and the freedom of fisheries' interests at all levels to act as an influence for the good of their own cause. We want the NRA to pull together a coherent national strategy for the maintenance, improvement and development of salmon, trout, eel and freshwater fisheries.
I hope that I have answered many of the points that have been raised by my hon. Friend the Member for Devizes. If my right hon. Friend the Member for Woking wishes, I will respond again.
Mr. Onslow : I am grateful to my hon. Friend for that reply. I am sorry that I have not been able to persuade him. In the certain knowledge that these matters can and will be raised again in another place, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendment made : No. 10, in page 139, line 15, at end insert-- and it shall be the duty of the Authority in determining the regions for which regional advisory committees are established and maintained to ensure that one of those regions consists (apart from territorial waters) wholly or mainly of or of most of Wales.'.-- [Mr. Ryder.]
Clause 161
Directions in the interests of national security etc
Amendments made : No. 94, in page 161, line 16, leave out or the commercial interests of any person'.
No. 95, in page 161, line 21, leave out
or the commercial interests of some other person'.-- [Mr. Ryder.] Further consideration adjourned.-- [Mr. Chapman.]
Bill, as amended (in the Standing Committee), to be further considered tomorrow.
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Legal Aid
12 midnight
The Solicitor-General (Sir Nicholas Lyell) : I beg to move, That the draft Legal Advice and Assistance (Scope) Regulations 1989, which were laid before this House on 3rd March, be approved.
Madam Deputy Speaker (Miss Betty Boothroyd) : I understand that it would be for the convenience of the House if we discussed also the next two motions :
That the draft Civil Legal Aid (Matrimonial Proceedings) Regulations 1989, which were laid before this House on 3rd March, be approved.
That the draft Legal Aid (Functions) Order 1989, which were laid before this House on 3rd March, be approved.
The Solicitor-General : Perhaps it would also be for the convenience of the House if we discussed the six Opposition prayers :
That an humble Address be presented to Her Majesty, praying that the Legal Advice and Assistance (Duty Solicitor) (Remuneration) Regulations 1989 (S.I., 1989, No. 341), dated 3rd March 1989, a copy of which was laid before this House on 9th March, be annulled. That an humble Address be presented to Her Majesty, praying that the Legal Advice and Assistance Regulations 1989 (S.I., 1989, No. 340), dated 3rd March 1989, a copy of which was laid before this House on 8th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Legal Advice and Assistance at Police Stations (Remuneration) Regulations 1989 (S.I., 1989, No. 342), dated 3rd March 1989, a copy of which was laid before this House on 9th March, be annulled. That an humble Address be presented to Her Majesty, praying that the Legal Aid in Criminal and Care Proceedings (Costs) Regulations 1989 (S.I., 1989, No. 343), dated 3rd March 1989, a copy of which was laid before this House on 9th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Civil Legal Aid (Assessment of Resources) Regulations 1989 (S.I., 1989, No. 338), dated 3rd March 1989, a copy of which was laid before this House on 8th March, be annulled.
That an humble Address be presented to Her Majesty, praying that the Legal Aid in Criminal and Care Proceedings (General) Regulations 1989 (S.I., 1989, No. 344), dated 3rd March 1989, a copy of which was laid before this House on 8th March, be annulled.
Madam Deputy Speaker : I understand that there is no objection to that.
The Solicitor-General : All the regulations relate to legal aid or to advice and assistance. They are made under the Legal Aid Act 1988 and constitute a package designed to implement the Act from 1 April. Within the framework of the 1988 Act this package will form the basis of the operation of legal aid for the coming years. Subject to a few specific exceptions, the regulations for the most part recreate the existing arrangements. However, the opportunity has been taken to carry out some measure of consolidation and revision and to give effect to some of the recommendations accepted by the Government in their White Paper on legal aid which foreshadowed the Legal Aid Act 1988. The regulations have been subject to wide consultation in draft.
The biggest change is that the responsibility for the administration of legal aid will pass from the Law Society to the new Legal Aid Board. I should like to take this opportunity to express the Government's appreciation of the service which the Law Society has provided to the
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public in administering legal aid for nearly 40 years. It might also be appropriate at the same time to wish the Legal Aid Board well in taking up the functions that the Law Society is now relinquishing.The most significant of the regulations are the Legal Advice and Assistance (Scope) Regulations which prescribe the scope of ABWOR--assistance by way of representation--as well as of green form assistance. In the White Paper on legal aid in 1987 the Government announced their decision that assistance in the making of wills and conveyancing should not normally be paid for out of public funds, and that they would take steps to restrict the green form scheme in those areas. In any publicly funded scheme such as legal aid the money available cannot be unbounded. It must, therefore, be directed to those areas where it is most needed and away from areas where there is a lesser need.
The Government have concluded that the use of green form advice and assistance to carry out a conveyance or to make a will are just such areas of lesser need. It cannot be right that the taxpayer should be asked to subsidise those who simply wish to arrange their own affairs. However, we have recognised that in particular cases there may be special needs and we have sought to ensure that hardship is not caused to vulnerable people as a result of the proposed change. Accordingly, the draft regulations contain a series of exceptions from the general exclusion of conveyancying and will- making from the green form scheme.
The Lord Chancellor's Department, following wide consultation, has provided that conveyancing services will continue to be available under the green form scheme in all cases where they are necessary in order to give effect to any court order, effect to the terms of a settlement in a divorce and to rental purchase agreements or conditional sales. Those are methods of house purchase where, unlike a purchase under a mortgage where the property is transferred immediately but acts as security for a loan, the ownership of the property does not change hands until the final instalment of the purchase money has been paid.
Participants in such transactions, who tend to be at the lower end of the housing market, can often find themselves in difficulties. Nevertheless, although the provision of conveyancing services is generally to be excluded from the green form scheme, I should stress that other forms of advice and assistance in relation to housing or land law are not. Thus, for example, a leaseholder concerned over his or her position under the lease may receive advice under the green form scheme. If, however, the advice is that some form of conveyance is required, the leaseholder will usually have to pay for that conveyance. In the area of will-making, advice and assistance will continue to be available for wills to be made by those aged 70 or over, by single parents wishing to appoint a testamentary guardian, by the physically or mentally disabled and the mentally ill, and by a parent or guardian who wishes to provide for such a disabled person. The remainder of the scope regulations set out the extent to which ABWOR will be available. Subject to certain modifications, the regulations extend ABWOR to those areas where it is currently available. However, there are three differences. First, during the passage of the Legal Aid Bill the Lord Chancellor agreed that all child care proceedings should be treated in the same way for legal aid purposes. As a result, all child care proceedings attract legal aid under part VI of the Act, which is granted by the
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court and not by the Legal Aid Board. Some of the proceedings relating to child care that now appear in part VI previously attracted ABWOR. As legal aid can now be granted by the magistrates court in question, ABWOR is no longer required and the regulations do not extend it to any of the proceedings for which legal aid is available under part VI.The second difference concerns the duty solicitor schemes at magistrates courts provided under the Legal Aid Act 1982. Technically, those services constituted a distinct form of legal aid, that is "advice and representation". Under the Legal Aid Act 1988, "advice and representation" became part of ABWOR and the regulations therefore extend ABWOR to cover all representation within the scope of the existing duty solicitor scheme.
The third qualification relates to the granting of ABWOR by a magistrates court or county court. At present, a magistrates court or county court may approve the provision of assistance by way of representation by a solicitor who is at that time in the precincts of the court and whose client is not already in receipt of legal aid. Those arrangements bypass the normal mechanisms for the granting of ABWOR through the Law Society and are intended to provide for representation where it is required as a matter of urgency. The regulations will ensure that such arrangements will continue. However, the wording of the regulations has been revised to make it clear that ABWOR is to be made available by that means only in cases where there is a genuine urgent need and not as a form of routine provision of representation--as has been happening in some places--or as a means of avoiding the usual application procedures.
Mr. David Ashby (Leicestershire, North-West) : Will representation at magistrates courts still be available under the provisions of the Police and Criminal Evidence Act 1984 where there is extended detention?
The Solicitor-General : I think that the answer to my hon. Friend's question is yes, but I shall check and confirm that that is the case when I wind up.
The next set of regulations for which approval is sought are those reproducing the effect of the existing Legal Aid (Matrimonial Proceedings) Regulations 1977, which exclude civil legal aid from undefended divorce proceedings, subject to certain exceptions where full representation is required. The new regulations simply recreate the existing position.
The final measure requiring affirmative resolution is the Legal Aid (Functions) Order 1989. The Legal Aid Board's functions in relation to legal aid in criminal or child care proceedings are extremely limited. However, at present criminal legal aid committees of the Law Society may hear applications for review of a refusal by magistrates courts to grant criminal legal aid. They may also hear other applications in relation to the amendment or withdrawal of legal aid in criminal or child care proceedings and applications for prior authority to incur expenditure.
The order gives the Legal Aid Board the necessary power to enable its area committees to carry out the same functions. It will allow the existing arrangements to continue in effect unchanged. The order will also allow the Legal Aid Board to take over responsibility for the promotion and publicity of criminal legal aid. That function has hitherto been carried out by the Lord
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Chancellor's Department. The board already has responsibility for publicity in relation to civil legal aid and advice and assistance. Turning to the regulations that have been prayed against, the Civil Legal Aid (Assessment of Resources) Regulations generally seek to recreate the existing position and follow the current regulations closely. However, they contain the financial eligibility limits relating to civil legal aid that previously appeared in primary legislation. The Lord Chancellor increased a number of the legal aid financial eligibility limits relating to civil and criminal legal aid and to advice and assistance. Those increases are generally of the order of 4.7 per cent., which reflects the rise in the level of social security benefits. However, the capital limit above which civil legal aid is not normally available has been raised by 20 per cent. to £6,000. He has also increased the capital allowances made for dependants in assessing eligibility for advice and assistance by nearly 68 per cent. to £335 for the first dependant, £200 for the second and £100 for other dependants. The limits governing the amount by which an assisted person's resources may change before they have to be reassessed have been substantially expanded for both criminal and civil legal aid. There is no reassessment for advice and assistance.The regulations also implement a recommendation of the legal aid advisory committee that the resources of cohabitants should be treated in the same way as those of married couples in assessing legal aid eligibility. Their resources are already treated in the same way for determining eligibility for social security benefits. The legal aid allowances available to spouses will now extend to cohabiting partners. That applies in both civil and criminal legal aid, and in advice and assistance.
Mr. Gerald Bermingham (St. Helens, South) : Does the
Solicitor-General agree that that will effectively remove a number of people from the legal aid system? Does he further agree that in cases in which the opposing parties are cohabitees, they will be effectively banned from legal aid?
The Solicitor-General : I certainly do not agree wih the hon. Gentleman's first point. Extending to cohabiting partners the legal aid provision available to spouses can be beneficial, depending on the incomes of the respective partners.
The Legal Aid in Criminal and Care Proceedings (General) Regulations are the result of a consolidation exercise, but, again, seek generally to recreate the current position. However, they also introduce some useful reforms. They provide for there to be a single common and mandatory application form for criminal legal aid in the Crown court and magistrates courts. The use of that form should assist in the provision of uniform information and, together with revised guidance on the grant of legal aid, lead to a more consistent approach on the grant or refusal of applications.
As was announced in the White Paper in 1987, court staff are to be able to refuse as well as grant criminal legal aid. The arrangements set out in the regulations will enable a justices' clerk or the appropriate Crown court officer to refuse any application in the first instance. That will speed up the process of handling applications and lead to applicants receiving earlier notification of the decision. However, the existing arrangements for appeals against
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refusal remain and will continue unchanged, and an application may be renewed to the court at any time. Officials will not be able to refuse applications after the first time. The regulations also provide that only judges may make or refuse a legal order for the assignment of more than one counsel, subject to a limited exception in respect of the magistrates court, and may have regard to the choice of the assisted person.The Legal Advice and Assistance Regulations relate to ordinary green form, ABWOR and the duty solicitor schemes in magistrates courts and at police stations. I have already mentioned the regulations which relate to the scope of advice and assistance and which require an affirmative resolution. Because of the need to deal with scope in separate regulations, the Legal Advice and Assistance Regulations which do not require affirmative resolution have had to be recast and as a result have a new appearance, but, for the most part, they have the same effect.
However, the House may know that the Lord Chancellor has agreed to the raising of the administrative cost limits for the green form scheme from its present £50, or £90 for the preparation of a divorce petition or judicial separation. The regulations now set the limit as the equivalent of two hours' preparation work, or three hours in connection with divorce or judicial separation. That means that in 1989-90 the cost limits will now be £73 and £109.50p respectively for most of the country and £77.50 and £116.25 in London. Moreover, the £50 limit applicable to advice and assistance at police stations in respect of non- arrestable offences has been abolished. All advice and assistance at police stations will now attract the higher and extendable limit.
The Civil Legal Aid (General) Regulations from which the Opposition have withdrawn a prayer give effect to the Government's decision, announced in the White Paper, that solicitors should be required to certify to the Legal Aid Board that public funding for the case is still reasonable when applying for a payment on account. It is intended that the report from solicitors should be required 18 months from the date on which the legal aid certificate was first issued--18 months being the limit on which an initial payment on account can be sought. It is therefore proposed that the Legal Aid Board should automatically send out to a solicitor a request for a report at the same time as it advises the solicitor of the entitlement to make a claim for payment on account. The regulations repeat the effect of the recent regulations which permit the postponement of the enforcement of the statutory charge in appropriate cases and the payment of interest on the postponed sum. They do not extend the scope for postponement beyond those cases already provided for. The remaining regulations prescribe the rates of remuneration for solicitors providing advice and assistance at police stations and duty solicitor services at magistrates courts, and for the rates of remuneration payable to solicitors and barristers undertaking criminal and child care legal aid work. These rates also apply to ABWOR and to civil legal aid in the magistrates courts. The rates payable are to be increased by 6 per cent. from 1 April. Moreover, duty solicitors who attend magistrates courts on Saturdays, Sundays and bank holidays will in
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future be paid at an enhanced rate, and new and higher rates of remuneration are introduced for solicitors undertaking child care work in the magistrates courts.The regulations have inadvertently created an anomaly whereby a duty solicitor who provides assistance by way of representation in relation to a warrant of further detention in unsocial hours will be paid less than he is now. As a result the Lord Chancellor will be making further regulations, to take effect from 1 April, to rectify that anomaly.
The rates of payment for legal aid work have been set following extensive discussions with both sides of the profession. In reaching a view on the increase to be awarded this year, the Lord Chancellor took into account the factors set out in the Legal Aid Act 1988. Overall, the proposed package forms a sound basis for the future operation of legal aid and contains some useful reforms. I invite the House to approve the three draft instruments laid before it on 3 March and reject the motions praying against the other regulations. 12.15 am
Mr. John Fraser (Norwood) : As a solicitor holding a practising certificate, I declare an interest.
I should make it clear to people who follow our proceedings that due to the lateness of the hour we have been disabled from voting on our prayers against statutory instruments Nos. 338 to 343. Had we been able to do so, we should have voted to oppose those instruments, which introduce the new rules and take into account the resources of a cohabitee--or cohabitees in the case of a bigamist. We should have expressed our indignation at the miserly increase of 6 per cent. in legal aid fees for criminal legal aid work. That is well below the rate of inflation and far less than the profession asked for in its discussions with the Lord Chancellor.
We oppose the Legal Advice and Assistance (Scope) Regulations 1989 because of their new restriction on advice about making wills and property transactions and the likelihood that they are a precursor of further restrictions on green form advice. We further oppose the regulations because of the restrictions described by the Solicitor-General on the growing duty solicitor schemes in county courts. We shall vote against those regulations as a token of our opposition to the other orders, to which we take exception but on which we shall be unable to vote.
The regulations confirm a pattern in the reduction of the number of people who are eligible for legal aid. In 1950, 80 per cent. of the population were eligible, but by 1974 the figure had fallen to about 40 per cent. In 1979, the Lord Chancellor announced that eligibility would be raised to restore it to 80 per cent. of the population, as had obtained when the scheme was first introduced in 1950. In 1986, when Lord Hailsham was Lord Chancellor, the allowances were down-rated, leading to an extra 25,000 applications for legal aid being withdrawn or refused. That was the first occasion on which there had been a deliberate reduction in eligibility. In 1989, compared with when the scheme first started, only about 50 per cent. of the population are eligible. I used population figures because using the percentage of households as a measure of eligibility for legal aid can be highly misleading, for reasons too complex to go into now. Between 1979 and 1986, about a quarter of the population lost access and
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eligibility to legal aid. The policy has been to reverse the open and universal access to justice that the legal aid and advice schemes are intended to implement.I should be grateful if, in winding up, the Solicitor-General would give us his estimate of the percentage of the adult population--not of households-- currently eligible for legal aid, and the extent to which the percentage has fallen since 1986. That question has been asked of the Law Officers and of the Lord Chancellor for the past year and I should be grateful to have the figures tonight. All the signs are that eligibility is continuing to shrink and that the regulations--not dramatically, but to some degree--will continue that process. There is no doubt that the new cohabitation rules on contributions will further reduce eligibility without any compensating increase in the cover of legal aid. They represent not an adjustment between one class of people applying for legal aid and another, but an attempt by the Treasury to claw back an admittedly modest amount of legal aid resources.
The new rules are at best impracticable and at worst oppressive. From my experience of criminal legal aid cases, extra-marital partnerships are common but not easy to define. They are often unstable and a common law partnership may dissolve as a consequence of the alleged offence. The advocate will have to make a judgment not only about the quality of the defence and the way in which it will be necessary to plead and present the evidence, but about the quality of the relationship--often, as a duty solicitor, having to work in a short time spane. He may have to ask questions in a difficult situation about relationships between a man and a woman, rather than getting on with representation of the case.
Those are the reasons why the new rules will be impracticable, but they may also be oppressive. There is no point in having contribution regulations unless one believes in the theory that the common law spouse or partner will contribute the amount that the regulations take into account. In practice, it is a different story. If Janet and John are living together, we cannot assume that Janet--assuming she has an income--will stump up to pay for John's defence when he is on a burglary charge or that she will contribute to the cost of custody proceedings between her common law husband and his previous wife. The Solicitor-General may say that rules exist at present for contributions between husbands and wives and that the cohabition rules will extend that practice to those in common law relationships. There are three points about that. First, the existing joint contribution rules are already oppressive. One has only to ask any unemployed man who has run out of his entitlement to unemployment benefit after 300 days or so and who finds that he has no entitlement to any other benefit because his wife is working. Many married people regard the cohabitation rule, which applies to the married and the unmarried, as oppressive. People do not welcome it.
Secondly, the trend in our taxation is to favour separate assessment far more than joint assessment. The Solicitor-General is therefore running contrary to what the Chancellor of the Exchequer is doing in relation to income tax. Thirdly, the cohabitee does not possess the property rights that a wife has. The common law wife may be asked to contribute towards her partner's defence, but if he later throws her out of the joint home which is in his name only, she will have no protection. There is not an exact equality
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of interest and rights between the common law spouse and the married spouse. That is a reason for not extending the rules to cover common law relationships.Another important point is that not once in the course of debates on the Legal Aid Bill in 1988 was it suggested that there would be what is now a fairly major change in contribution relations. The common law spouse contribution principle is being slipped through Parliament after midnight without any possibility of voting on it. That is not just wrong in principle--it is an abuse of the procedures of the House. An unfair and impracticable system is being introduced without proper parliamentary consideration and without any chance for Parliament to reach a decision on that aspect of the regulations. As for the reduction in green form cover, in practice there has already been a considerable reduction in the availability or use of legal advice and assistance. Between April 1988 and January 1989, one in 13 potential users of the green form scheme dropped out, mainly due to rising housing costs, which are not deductible under the green form scheme--particularly the increases in mortgage repayments engineered by the Chancellor of the Exchequer. Now the scope of the advice scheme is to be restricted in respect of certain aspects of wills and conveyancing.
The green form scheme was described in the Lord Chancellor's Department study as
"efficient and most cost-effective"
and the restriction will save only a tiny percentage of the cost of legal advice and assistance, at the expense of poor people who exceptionally-- already the occasions are fairly rare--require advice on a will or property transaction. The scheme will be complicated by a list of difficult exceptions--for instance, by the confusing proposition that one can get a will under the green form system if one is poor and over 70 but not if one is poor and merely an old-age pensioner. Moreover, the savings from disallowance will be tiny. Coupled with our views on that is our regret at the ending of duty solicitor schemes in the county courts, which look after people facing eviction. Such people can get representation in the court because a rota system has been introduced by a local law society. The Solicitor-General seems to dismiss such schemes as affording representation to people who do not really need it. I do not regard it as a luxury to provide legal aid to someone faced with losing their home and perhaps with moving into bed-and-breakfast accommodation, especially as the state will be faced with meeting the cost of such accommodation. It may well save money for the local authority and for the family involved and also save the time of the court. It is very much to be regretted that the scheme is to be cut. The Government's game is not worth the candle ends that it will save. We fear that this is just the first cut, which may lead to cuts in important areas of advice--on immigration or housing generally. If the Solicitor-General can give a solemn assurance that this is the last and only restriction of the scope of the scheme, perhaps he will intervene to say so--if not, we fear that the proposals represent the first step in the erosion of the green form legal aid scheme. So far, I have discussed the steps which erode the legal aid scheme and restrict access to it. I want now to deal with remuneration for legal aid work, and what is, in my view and in that of most commentators, a wholly inadequate rise in pay for those engaged in criminal legal aid work on
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a wholly inadequate base. A year ago, a Law Society survey of criminal legal aid work found that 40 per cent. of solicitors' offices had given up, or were seriously thinking of giving up, criminal legal aid work, and 80 per cent. gave low pay as their reason. A year later a study appeared, the results of which were sensational. Both the method used and the authors of the survey, conducted by Touche Ross, are unimpeachable.Touche Ross found that the overwhelming number of firms involved in criminal legal aid work do it at a loss. The average profit ratio in the provinces was minus 33 per cent.--the average, of, course, includes those making a profit as well as those making a loss--and in London it was minus 44 per cent. Out of 8,000 firms doing legal aid work, only 70 firms in London were grossing more than £100,000, which is not a great deal in terms of legal aid income, and making a profit, and 450 firms in the provinces were grossing more than £50,000 per year. If all the firms losing money dropped out, only one tenth of those offices now doing criminal legal aid work would be left in business. That would be an enormous reduction in choice and access for criminal legal aid defences.
The orders raise remuneration by 6 per cent., with enhancements for unsocial hours and Saturdays, when evidence shows that last year many firms were making a loss and thinking of giving up legal aid work altogether, inflation is already 7 per cent. and likely to go higher, and salary rises for solicitors generally are charted as running at about 15 per cent. per annum.
The Lord Chancellor is an advocate and a friend of market forces. He believes in the market forces philosophy for the law, but he obviously does not believe, any more than the Government do, that there should be a market rate for the job. The 6 per cent. increase is a miserly rise on a loss- making base and it will drive even more firms to make a loss. In those circumstances, it is an abuse of people with a sense of duty. The same kind of abuse has been inflicted on others who have ethical rules and perform public duties, such as doctors and nurses in the National Health Services and teachers and lecturers in the education service. It means that the quality of representation will be at risk. The more experienced advocates will give up criminal legal aid work and will be replaced by the less experienced. The danger is that there will be a second-class service on second-class pay. Firms will be supported by a cost subsidy from more profitable private work of the sort that the Lord Chancellor is putting into the melting pot with the legal services review.
We all recognise that legal aid work will always be less remunerative than private work, even though the cash flow on legal aid work is much worse than on private work. There will always be some differential between the rates of remuneration for the two kinds of work, but it is grossly unjust that the rates for legal aid work are so far below the market rate as to make it a predominantly loss-making activity for the people involved.
I will adopt some of the arguments of Andrew Thomas--my partner, but also a member of the Legal Aid Practitioners Group--when commenting on the gross discrepancy between the rates of remuneration for those doing legal aid work and those doing private work. He said that remuneration is based on an utterly wrong principle. We do not pay a judge less money when he is
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trying a legal aid case than he would be paid trying a private case. We do not pay the policeman who arrests the man who will receive legal aid less money than the policeman who arrests someone who will be privately represented. We do not discriminate in that way.We do not pay the Lord Chancellor less money when sitting in that part of the Lord Chancellor's Department which deals with legal aid as opposed to that part of the Department which deals with other matters. The Solicitor- General will not take a 50 per cent. cut in his pay to participate in a debate in unsocial hours because we are discussing legal aid rather than some other aspect of legal work such as the law of property legislation that we were discussing in committee 14 hours ago. We do not pay a jury a lower allowance for trying a man who is legally aided as opposed to privately defended. It is monstrous that a large part of the profession, which now makes heavy losses to deal with criminal aid work, should be penalised because it has a sense of duty and because it is tied to the system. Such people are cross-subsidised from other forms of work. Because of that we shall have a token vote on one of the regulations. I hope that the Solicitor-General will take on board the deep dissatisfaction felt about the restriction and cover of legal aid and about the way in which the professions have been treated. 12.34 am
Mr. David Ashby (Leicestershire, North-West) : I apologise to my hon. and learned Friend for bowling him a googly about the Police and Criminal Evidence Act 1984 and whether representation will still apply. I now know that the answer is yes, but my hon. and learned Friend has told us that, as a result of the regulations, solicitors who go out to police stations to represent people who are detained for extended periods under PACE will receive less remuneration than hitherto. That worries me greatly and, as the House will know, I voted against the Third Reading of the Bill because of that. I considered that the 96 hours of detention were unreasonable and that they represented an affront to civil liberties. The only saving grace in the Bill was the fact that people who were detained for a long time would have representation. If there is any suggestion that, as a result of the regulations, people will not be represented and that solicitors will be unwilling to go out to the police stations, I urge my hon. and learned Friend to come back to the House with amendments. It is essential that such people should be represented. When we discussed the Police and Criminal Evidence Bill the Government told us not to worry about the 96 hours of detention. They told us that people kept for extended periods would be looked after and represented by solicitors. If, as a result of the regulations, such people are not to be looked after, that represents a breach of the undertaking then given by the Government. That worries me greatly.
I welcome the safeguards that exist for the disadvantaged regarding wills, but I do not see why legal aid should be extended to people who make wills. I do not see anything wrong in respect of cohabitees. One is dealing with money that goes into the family and if the joint income of cohabitees is above the specified level, I do not
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see why legal aid should be extended to them. It may be that the level is too low, but I do not disagree with the principle. I am disappointed that the regulations have not been extended to cover tribunals. Tribunals are fundamental as they deal with the nitty- gritty of people's lives. What happens to ordinary or disadvantaged people who lose their jobs through unfair dismissal? They go along to a tribunal in the belief that they will receive justice, but they face a wealthy company with an array of solicitors and barristers brought down from London. The ordinary person believes that he will be able to present his case, but he is cross-examined into the ground and overwhelmed. A little bit of legal aid would bring a great deal of justice to such people, and it should be extended to tribunals.It is important that we do not forget that we do not have an expensive legal system. While I agree that the total amount of legal aid has greatly increased, we do not have an expensive system of justice. Despite what the popular press says, the remuneration of solicitors and barristers in this country is much lower than the profession gets for ordinary work in France, Italy, Germany and the Netherlands. If a solicitor or barrister wants to make money, he or she should go to the continent--it can be done now--where the remuneration is four or five times greater than it is here. The value of a person being represented in the courts is that it represents an enormous saving in money and time. The cost of cases does not lie in the advocates, as the popular press makes out. The expenditure is to be found in the cost of the buildings. There is a Crown court next door to Harrods ; I wonder what that is worth in property terms. Then there are the ushers, police officers, judges, juries and all the back-up staff.
When a person is properly represented, a great deal of money and time is saved because witnesses are interviewed and only relevant witnesses are called. Experienced lawyers call witnesses to deal only with points that are required and not with peripheral matters or waste the time of the court. No matter what certain people, including the popular press, say, there is little wastage of court time. The efficient lawyer saves an enormous amount of time, and time is money.
Trying to get law on the cheap only increases overall costs. I had not heard of the report by Touche Ross and I am sorry, if not surprised, to hear that so many solicitors are saying that they will not do criminal legal aid work. I have solicitor friends, and people who have instructed me, who have said that they will not do such work, but most of them have hitherto been saying not quite that. They have been saying, "We are making a little loss on the criminal legal aid work. It does not pay much, but we must regard it as swings and roundabouts ; we are making a bit on conveyancing and getting some money here and there, so we will do the criminal legal aid work, and overall the practice will be profitable." But now we are faced with a Green Paper and solicitors are finding their conveyancing work under attack. That will reduce the ability of solicitors to subsidise the less profitable areas.
I do not think we will get much change out of the Lord Chancellor's department and have more money going to legal aid. The overall effect of this concerted attack on the profession will be that the poor person who is just outside the legal aid limits will not be able to find a solicitor. Solicitors will not be prepared to do legal aid work if there is nothing else to subsidise it. The whole issue must be
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viewed in the round, but I fear that people are not doing that. We are seeing it in bits and pieces. We have the legal aid legislation and the regulations and we have the Green Paper. We are not considering it in the round to try to ensure that solicitors have adequate remuneration for the amount of work that is required. For those reasons, I put in my reservations. I hope that my hon. and learned Friend will take them into account because it is very important to look at the overall picture.12.44 am
Mr. Jeff Rooker (Birmingham, Perry Barr) : I will be extremely brief. Exactly three hours ago, at a quarter to ten, I was responding to a telephone message from a constituent, one of many calls that I was trying to make before the 10 o'clock vote. It happened to be about legal aid. The lady, Mrs. Lane, did not know about the debate that was to take place. She made a few points that are appropriate to raise now, bearing in mind the change in the system.
I will not give all the details. Mrs. Lane, a young widow, told me about her difficulties. Her house was under constant attack. The police would not do anything ; they told her that she needed an injunction. She went to a local solicitor and got an injunction. Her total income--not disposable income--is only £88 per week, made up of the widowed mother's allowance of £51, child benefit of £7 and part-time earnings of £30. She has never received supplementary benefit or any other social security benefit.
Mrs. Lane got an injunction. The hassle did not stop. Last September, without warning, up popped a bill for £360. It goes without saying that she has no savings. She got in touch with the legal aid authorities in Preston or London ; I am not sure which it was. There was no answer. Next, she had bailiffs at the door because she had not paid her bill. She told them to go away.
Checks were made and it appeared that the authorities had forgotten that she was a single parent and all kinds of things. She has still ended up with a bill for nearly £300. I did not go into all the details because there was not time, but I will provide the Solicitor-General with further details within a few days. I cannot understand how a young widow, who has sought help from the police and who is told to get an injunction, should end up with such a bill when she is struggling along on a low income, without any means-tested benefit. She has been told that she will have to pay off the bill in less than a year. The bill was miscalculated originally, After complaining, she heard nothing until the legal aid authorities sent the bailiffs round.
That is an example of the disgraceful administration of the legal aid system. I do not want to give any information about her solicitors. They do not seem to have given her the best advice about the circumstances that she would get into. If it helps the Minister, the lady's name is Mrs. Lane and the reference number is 1347118-6. I am told that the legal aid office in Preston knows all about the case.
Someone should ensure that the legal aid authorities, even under the new system, do not send the bailiffs round to constituents who have legitimately questioned bills, before those constituents have received answers. Whoever is responsible for it, that is disgraceful administration. No doubt the Solicitor-General will be as appalled as I am. I hope that Mrs. Lane will have some respite and that her bill will be checked properly.
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