House of Commons Hansard Debates for 22 Mar 1989

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Taking into account Mrs. Lane's total income and the bill she has to pay, it is outrageous, even considering the figures contained in the regulations, that she has been put in such a position as a result of going to court to defend herself and her daughter because they were under attack. That is the only point I want to make. I hope that the system under the regulations will be better than the system under which my constituent suffered. I hope too that something can be done about her case.

12.50 am

Mr. Bob Cryer (Bradford, South) : I shall be brief. I shall not go into the merits of the regulations, save to say that statutory instrument 1989, No. 340, and statutory instrument 1989, No. 344, carry the rubric that the Select Committee on Statutory Instruments has not yet completed its consideration of them. I protest at the constitutional outrage that has been visited upon Parliament by the Government. These instruments were sent to the Committee, which, I remind hon. Members, has a duty to report to the House if there are any technical faults, if a Minister is abusing his or her power, if there is a fault in drafting, or if an instrument is ultra vires. These two instruments and others in respect of which faults were not found--there is no qualification on the Order Paper--were sent on Thursday and Friday of last week. The Committee meets every Tuesday at 4.15 pm, so it was quite clear to the Government that by the time we received the instruments we would have only one day in which to consider them before reporting to the House. In respect of the two instruments concerned, we have asked the Department for memoranda. That is what we have to do in order to report an instrument to the House. We have to give the Department an opportunity to present its answer to our queries, yet, by so doing, we lose the opportunity to present a report to the House, because the debate is being held tonight.

There is worse to come. The instruments come into force on 1 April. In the case of statutory instrument No. 344, the fault about which we are particularly concerned involves the calculation of the means of a person being considered for legal aid. Practitioners will be expected to operate this instrument from 1 April, and a parliamentary Committee, whose membership is in accordance with party strengths in the House, is being denied the opportunity to report effectively on it. The Committee is being thwarted in the task that the House has given to it. It really is completely and utterly outrageous. There is another point. The Committee arranged to meet the Leader of the House on Tuesday to discuss this very problem. I am talking not just about myself, but about Conservative Members also ; they accompanied me to see the Leader of the House. We expressed very strong reservations. We do not wish to see our work set at naught by having instruments debated on such a date and at such a time that the Committee simply cannot do its job. That is what is happening tonight, and it is an abuse of Government powers to trample over a Select Committee of the House in such a way. We have been denied the opportunity to report to the House the defects of an instrument. I should point out to the Minister that the defects in respect of these two instruments were not raised by

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members of the Committee but were brought to our attention by counsel to the Committee. If the Minister is thinking of arguing that somebody on the Committee is playing politics, let him know that that would be quite erroneous. As he knows, our adviser is the counsel to the Speaker, and he advises us purely on technicalities. In any case, the Committee does not deal with the merits of instruments. I am sure that I am registering a protest for all members of the Committee, Conservative and Labour alike. It is an abuse of our procedures to bring regulations forward without giving the Committee an opportunity to report, and to do so in such a way that the prayers cannot be dealt with because they were taken after 11.30 pm. The Government are crowding parliamentary time too much. They are getting too much legislation through, and democracy is being trampled on. 12.55 am

Mr. Keith Vaz (Leicester, East) : We must look at the draft regulations in the context of the Government's policies on legal aid and the way in which the profession now views the Government. The profession has lost confidence in the way in which the Government have been operating the legal aid scheme, as have the consumers. The past 10 years have seen a multiplicity of legislation that has had a great effect on social and welfare law. Before I was elected to the House, I served as a solicitor in a law centre in Leicester. I hoped that, once elected, I would cease to act as a legal adviser to my constituents. Although I hold a practising certificate and I declare an interest for that, I do not practise as a solicitor. All of us who represent inner-city seats know the level of case work at our surgeries that has been generated by the changes in social security law, housing law and immigration law--in all aspects of social welfare law. What we needed from the Government in the regulations was an extension of legal aid and greater provision for those who seek justice through our legal aid system.

However, what we have is a situation in which consumers cannot afford to go to private solicitors. They cannot afford legal assistance, because, as my hon. Friend the Member for Norwood (Mr. Fraser) said, the number of people eligible for legal aid has diminished greatly over the past decade. Many people cannot afford to go to solicitors or to pay for the cost of private legal services. Therefore, they have to go to their Members of Parliament, they have to seek advice from those who are not qualified to give advice, or they simply cannot obtain justice.

I hold no brief for solicitors. I have yet to meet a solicitor who is on the dole or who is starving because he or she cannot make a living. I know many solicitors and barristers who do very well out of the legal aid system and I know many more who do very well out of our private legal system. However, if solicitors are not being properly remunerated for their legal aid work--a survey conducted by the Law Society shows that many solicitors are either giving up legal aid work or are about to give it up because they are not properly remunerated--it means that people are going without proper legal advice, and that is a problem.

In a city such as Leicester different forms of agencies provide legal advice and assistance, and thriving and flourishing private firms of solicitors are essential for

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providing that network of legal services. We have two law centres in Leicester--one of which has been in crisis over the past two years, although I hope that at 8 o'clock this evening it will form itself again into a properly functioning law centre. We also have a citizens advice bureau which gives advice and assistance, and we have a private sector. Each of those arms of the network of legal service is essential for my constituents to get proper advice and assistance. I conducted my own survey of local solicitors firms when I served on the Committee on the Legal Aid Act 1988, sitting opposite the Solicitor- General. I asked them whether they were satisfied with the present administration of the legal aid system, and not a single one replied that it was satisfied. They all felt that they would have to choose between continuing in that work and providing advice and assistance, and doing company and commercial work and conveyancing. I cannot understand why, having accepted that there are special cases of people who should get assistance under the green form schemes for wills and conveyancing the Solicitor-General does not go that little bit further and allow all the other cases to be admitted. It is essential that if someone is 69, and therefore does not qualify for the exemptions set out by the Solicitor- General, he or she should be able to obtain proper advice on how to prepare his or her will. I support the arguments put forward by my hon. Friend the Member for Norwood and others about the duty solicitors scheme. It is essential that those who go to the county court--tenants facing possible evictions or possession orders from local authorities and others--should be able to obtain proper advice, assistance and representation.

There is no evidence that the system is being abused by solicitors. We need a network of legal services throughout the country. I should prefer it if legal aid was not operated on the basis of a business, but as it is in America, which has a public defender scheme in which solicitors are paid a fixed salary through a network of law centres. I accept that, under this Government, who have cut the amount of resources available, we shall not obtain a system of that kind. I support what the hon. Member for Leicestershire, North-West (Mr. Ashby) said about the need to extend legal aid. So much could have been achieved by the draft regulations. The Solicitor-General could have presented proposals for the extension of legal aid to industrial tribunals, to provide proper assistance for people. Under the Employment Bill currently going through the House, people will be required to put down deposits to guarantee their case before they can go before industrial tribunals. These proposals are further attempts to prevent people from exercising their rights.

When the Legal Aid Act was in Committee, I asked the

Solicitor-General whether he felt that justice was cost-effective. He told me--this seemed strange coming from a lawyer, and

Solicitor-General--that it should be. That is where we part company. Resources should be made available for people to exercise their rights and obtain proper justice. The Solicitor-General should not kow-tow to the views of the Treasury and the Chancellor of the Exchequer and cut funds which are necessary for people to obtain justice and proper legal services.

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1.2 am

Mr. Terry Davis (Birmingham, Hodge Hill) : I shall join my hon. Friends in voting against these regulations for the reasons explained by my hon. Friend the Member for Norwood (Mr. Fraser) and my other hon. Friends who have participated in the debate. I shall do so particularly because of the Government's failure to extend legal aid to representation at tribunals, which leaves a serious gap in legal aid provision. In Birmingham, that gap is to some extent filled by the establishment of a number of organisations--notably the Birmingham tribunal unit and the legal unit of the citizens advice bureau. However, this means that the gap is being filled by bodies which are financed largely by city council grants, so Birmingham's ratepayers are paying for people to be legally represented who would not otherwise be represented. Tribunals may deal with matters which are extremely important for the individuals involved.

The Member for Leicestershire, North-West (Mr. Ashby) referred to industrial tribunals, but there are other extremely important tribunals which deal with social security legislation and people's rights to tenancies, mobility allowance and income support. In the past, there have been applications for single payments and appeals when they were refused. In that range of social security benefits it is extremely important that claimants should have the opportunity to be represented by people who are more articulate, skilled and experienced in those complicated regulations.

I wish to draw the attention of the House and particularly of the Solicitor -General to another omission from the regulations. In recent months, a number of constituents have complained to me about having their legal aid certificates discharged against their will. These people do not consider that they have exhausted the procedure for taking legal proceedings against doctors or neighbours. Such matters can be extremely important in peoples' lives. A constituent of mine, with my assistance, went to appeal against a discharge of her legal aid certificate in a complicated case involving alleged negligence by doctors. After my representations to legal aid head office, a second hearing was arranged because it was agreed that the original hearing of her appeal had not been satisfactorily considered and the procedures had not been followed in such a way as to satisfy the regulations.

I was disturbed to learn that a person who goes to the area committee to appeal against a discharge by the area director is not given the report known as the case note, which is prepared by the staff in the legal aid office. That is incredible. I know of no other example of a person going to court and not being shown the evidence against him--or the evidence of the other side in a civil action. To have to explain why one does not think one's legal aid certificate should be discharged without knowing the reasons for its discharge is extraordinary. I know of no tribunal that would consider a person's appeal against the refusal of a social security benefit without showing the person an explanatory statement. Many of my constituents have appealed against decisions on immigration, and they are always given an explanatory statement prepared by the entry clearance officer.

It is not enough to provide, as the regulations do, for a person to be given the grounds for the discharge of a legal aid certificate. We are used to seeing two or three-line grounds for refusal of entry clearance or of a social

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security benefit. It is important to understand the reasons why the entry clearance officer, or the adjudication officer in the social security system, has come to his or her decision to refuse the person something. Yet the regulations do not provide for people to be given explanatory statements. I imagine that the Solicitor-General, like me, did not know that that was necessary before, but the principles of natural justice require that a person be given the reasons for a decision.

My constituent who wished to appeal against the discharge of a legal aid certificate went to the area committee and explained why she thought that her legal aid certificate should be reinstated, but she was not given any information about the reasons for the decision by the legal aid staff-- reasons which were given in writing to the area committee. She was expected to argue her case against reasons that she had not been told. That is amazing.

That decision was not made by the legal aid area director, who sheltered behind a decision which she said had been made by the Legal Aid Committee in London--that people should not be given reasons for a decision to discharge a legal aid certificate. That is grossly unfair. Hon. Members on both sides of the House would consider it so. I hope that the Solicitor- General does, too, and that he will join me in making strong representations to the new Legal Aid Board which will replace the present Legal Aid Committee to ensure that this bad practice is changed immediately.

1.8 am

Mr. Gerald Bermingham (St. Helens, South) : I declare an interest-- past, present, and probably future : I have been both barrister and solicitor.

I read the regulations with growing horror. I ran a large practice in the north of England--it included a large legal aid element--and experience has taught me that profitability in legal aid has slowly decreased over the years. That presents a real danger. Not only are the numbers of people who are eligible for legal aid falling, but the incentive to solicitors' firms to undertake legal aid work has decreased.

It is all very well for hon. Members to say that there are no poor solicitors. A solicitor practising in a rural area is already under threat from the reform of the conveyancing rules. At the same time, according to Law Society surveys, legal aid work is clearly unremunerative. Therefore, the solicitor has two choices : either to forsake work or to move to a large city or a company in that city. That means that practices are moving from the rural and semi-suburban areas whether or not they depend on legal aid work. The right to representation is denied to people in those areas.

When we introduced the legal aid system years ago I thought that the objective was to increase people's rights to representation in the courts. Over the past 20 years I have seen that the law is slowly concentrating in the hands of those who can afford to pay for it. As was said earlier, a company is represented at an industrial tribunal with all its might, ammunition and armaments. The applicant may sometimes be assisted by his trade union official, but very often he is on his own. What price justice?

The Law Society recently produced a document which shows that the representation in county courts for the

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unassisted plaintiff provided by solicitors on a voluntary basis, is diminishing. The amount of remuneration available makes that representation uneconomical. Legal aid is being withdrawn in that area.

In the county courts and before registrars, the unrepresented defendant, very often the plaintiff in person, appears without the necessary skills-- [Interruption.] I hope that the Government Whip who has just entered the Chamber will concentrate on this debate rather than on his social life. Manners are precious, even in this place.

Justice is being denied. The plaintiff in the circumstances that I have just described does not know all the rules or regulations. He does not know when the affidavit must be filed and he is unaware of the procedural minefield through which most plaintiffs must proceed if they wish to succeed. Very often in possession cases a plaintiff will face the might and main of a major company landlord who will be armed with counsel, solicitor and all the good advice that they can give.

Matters are currently striking at the very heart of our system of justice in respect of the criminal law. The first of these is the serious matter of the provision of expert witnesses at Crown court trials. I am aware of occasions when I and my colleagues at the Bar have advised that expert evidence is required. You have no idea, Mr. Deputy Speaker, of the difficulty in obtaining permission to call expert witnesses on behalf of the defence. Those witnesses may be able to give evidence on handwriting or fingerprints or they may be engineering witnesses in car-ringing cases. However, the defence is told that those witnesses are not allowed. Justice is not being served when that happens. We do not advise that experts are necessary in those cases if they are not, because counsel who so advise run the professional risk of being criticised. No one would undertake that risk lightly. However, legal aid authorities are reluctant to allow such witnesses and the usual excuse is the cost involved. Justice is again put at risk by the meanness or the cash limits being applied to legal aid work. It is easy for lawyers to plead their own cause. We are often the subject of fun and the butt of humour because we appear to be asking for more, like Oliver Twist. However, the issues that I raise tonight have nothing to do with the remuneration of lawyers, because there will always be lawyers who are prepared to do legal aid work. Lawyers have a sense of morality and a commitment to justice.

The point I make is that because of the meanness of the legal aid authority and the denial of assistance to the plaintiff or to the person in the dock, his or her case or cause--and sometimes his or her liberty--is put at risk. That is because somewhere there is a bureaucrat who does not understand the system but who is the arbitrary judge of whether expert advice or help should be made available to the person whose liberty may be at risk.

The regulations do nothing to serve justice. They will probably diminish the number of lawyers who are prepared to undertake legal aid work. They will probably make justice less accessible to many people. The Solicitor- General need not reply to me tonight, but perhaps he will at some stage explain what tables 1 and 2 on page 20 of the regulations mean. I suspect that they constitute another attempt to cut the income of those preparing to serve justice by undertaking legal aid work.

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1.15 am

The Solicitor-General : I shall endeavour to answer briefly the questions raised by the hon. Member for Norwood (Mr. Fraser) and by other hon. Members. The first question of the hon. Member for Norwood concerned eligibility, which quickly became linked with other points on remuneration. As those hon. Members who participated in debates on the Legal Aid Bill will recall, it is extremely difficult accurately to answer what proportion of the population--let alone of households--is eligible for legal aid. It depends very much on the circumstances of the individual household. It may not be eligible as a whole, but if the family breaks up, one of the spouses may become so.

Legal aid is reaching more people than ever before. Since 1979-80, the number of criminal legal aid orders granted has increased by 40 per cent. to nearly 600,000. Over the same 10-year period, the number of bills paid for those receiving advice and assistance under the green form scheme has increased also by about 40 per cent. and now stands at more than 1 million. The number of new legal aid certificates issued has increased by about 30 per cent. to 250,000. In addition, assistance by way of representation-- ABWOR--was introduced and has been provided in about 60,000 cases.

The Government have also made provision for duty solicitor schemes at magistrates courts and for advice and assistance at police stations. In the 10 years since 1979, overall expenditure on legal aid has increased from about £100 million in 1979-80 to nearly £550 million in 1989-90, which is an increase way ahead of inflation. Of course it relates to many more people receiving legal aid, but that is what legal aid is about.

As to remuneration, there have been detailed discussions between the Lord Chancellor's Department and the Law Society. Mention has been made in the debate of the Touche Ross report, which was well designed to inform debate on what levels of remuneration ought to be. It is true that, according to the tests applied, legal aid remuneration does not appear to be profitable in the case of a small firm undertaking a low volume of such work.

The difficulty is that, at present, the same levels of remuneration are payable regardless of whether a practice undertakes one or two cases over a lengthy period, or a large number of cases, week in and week out. However, the figures--which have been the subject of much discussion between the Lord Chancellor's Department and the Law Society--show that, provided a practice undertakes a substantial volume of legal aid work, it can be very profitable. The hon. Member for St. Helens, South (Mr. Bermingham) will understand that very well.

Mr. Bermingham : Does the Solicitor-General accept that the cost of running a solicitors' practice is between £40 and £60 an hour in an urban area and probably between £30 and £40 an hour in a rural area? I may be going back a few years as I have not checked recently. If the Solicitor-General would only look at the legal aid rates, he would see that the amount paid per hour is less than the cost of running a practice, so it cannot be profitable.

The Solicitor-General : I did not intend to incense the hon. Gentleman. I wanted to draw it to the attention of the House that, if a firm does a substantial amount of legal aid work, it can be very profitable. The problem is not that the figures are wrong, but to find a fair way to deal with small firms in rural areas, just as one looks for a fair way to deal

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with medical practitioners with scattered rural practices. The Lord Chancellor's Department intends to study the matter carefully. However, the Touche Ross report demonstrates that legal aid can be substantially profitable if a firm does sufficient work.

My hon. Friend the Member for Leicester, North-West (Mr. Ashby), the hon. Member for Birmingham, Hodge Hill (Mr. Davis) and other hon. Members called for legal aid for tribunals. The position is not static and we discussed the matter in relation to the Legal Aid Bill. The hon. Member for Leicester, East (Mr. Vaz) will remember that research is in course, particularly into legal aid for industrial tribunals, social security appeal tribunals, immigration adjudicators and mental health review tribunals. That research team will report shortly.

Mr. Vaz : Will the Solicitor-General give way on that point?

The Solicitor-General : No. I must press on, as I have to deal with a number of points.

Green form assistance is already available. The hon. Member for Hodge Hill raised a particular case in which there appeared to be some lack of natural justice in an appeal to an area committee. The general reasons why legal aid has been refused are given, although individual committees may have different practices ; if the hon. Gentleman writes to me, I shall look into the case he raised. The hon. Member for Birmingham, Perry Barr (Mr. Rooker) raised another detailed case. If he sends me further details, I shall look into the case and do my best to answer him.

An apology may be owed to the hon. Member for Bradford, South (Mr. Cryer), as the regulations have had to be brought before the House in some hurry. He recognised that we had to bring the measures forward because some citizens might lose because the regulations must be in effect by 1 April. To put the matter into some perspective, I am told that the instruments were laid on 8 March and drafts of them were supplied in advance to the officials of his Committee in January. If there is fault on our part, I shall look into it, and if an apology is owed I give it now. We certainly do not wish to be disrespectful to his Committee, but I hope that the points that I have made and our attempts to do things in advance have at least eased the position. I have covered most of the points raised in the debate. We are dealing with a serious matter. I emphasise the very large increase in the provision of legal aid. The object of legal aid is to provide those who cannot afford it with sufficient means to litigate when litigation is necessary for circumstances beyond their control or where they should reasonably have support. The objective of the regulations is to put the Legal Aid Act into effect, and I commend them to the House.

Question put :--

The House divided : Ayes 73, Noes 32.

Division No. 134] [1.24 am

AYES

Amess, David

Amos, Alan

Arbuthnot, James

Arnold, Jacques (Gravesham)

Ashby, David

Batiste, Spencer

Bellingham, Henry

Bennett, Nicholas (Pembroke)

Boswell, Tim

Bowis, John

Brazier, Julian

Bright, Graham

Browne, John (Winchester)

Carrington, Matthew

Chapman, Sydney

Coombs, Anthony (Wyre F'rest)

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Couchman, James

Cran, James

Currie, Mrs Edwina

Davis, David (Boothferry)

Dorrell, Stephen

Dover, Den

Durant, Tony

Fallon, Michael

Favell, Tony

Fenner, Dame Peggy

Field, Barry (Isle of Wight)

Forth, Eric

Garel-Jones, Tristan

Greenway, John (Ryedale)

Gregory, Conal

Griffiths, Peter (Portsmouth N)

Ground, Patrick

Hague, William

Hanley, Jeremy

Hargreaves, Ken (Hyndburn)

Harris, David

Hayward, Robert

Heathcoat-Amory, David

Hind, Kenneth

Howarth, Alan (Strat'd-on-A)

Howarth, G. (Cannock & B'wd)

Hunt, David (Wirral W)

Hunter, Andrew

Irvine, Michael

Jack, Michael

Janman, Tim

Jessel, Toby

King, Roger (B'ham N'thfield)

Knapman, Roger

Lang, Ian

Lightbown, David

Lyell, Sir Nicholas

Maclean, David

Mitchell, Andrew (Gedling)

Neubert, Michael

Nicholls, Patrick

Nicholson, Emma (Devon West)

Norris, Steve

Paice, James

Porter, David (Waveney)

Raffan, Keith

Ryder, Richard

Sackville, Hon Tom

Shaw, Sir Michael (Scarb')

Spicer, Sir Jim (Dorset W)

Stevens, Lewis

Stradling Thomas, Sir John

Taylor, Ian (Esher)

Thompson, Patrick (Norwich N)

Thorne, Neil

Thurnham, Peter

Twinn, Dr Ian

Vaughan, Sir Gerard

Waddington, Rt Hon David

Widdecombe, Ann

Wood, Timothy

Tellers for the Ayes :

Mr. Kenneth Carlisle and

Mr. John M. Taylor.

NOES

Abbott, Ms Diane

Barnes, Harry (Derbyshire NE)

Battle, John

Bermingham, Gerald

Bruce, Malcolm (Gordon)

Campbell, Ron (Blyth Valley)

Cryer, Bob

Cummings, John

Cunliffe, Lawrence

Davis, Terry (B'ham Hodge H'l)

Foster, Derek

Fraser, John

Godman, Dr Norman A.

Golding, Mrs Llin

Gordon, Mildred

Griffiths, Win (Bridgend)

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