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Column 262

Patchett, Terry

Pendry, Tom

Pickthall, Colin

Pike, Peter L.

Pope, Greg

Powell, Ray (Ogmore)

Prentice, Ms Bridget (Lew'm E)

Prentice, Gordon (Pendle)

Prescott, John

Primarolo, Dawn

Purchase, Ken

Quin, Ms Joyce

Radice, Giles

Randall, Stuart

Raynsford, Nick

Redmond, Martin

Reid, Dr John

Rendel, David

Richardson, Jo

Robertson, George (Hamilton)

Robinson, Geoffrey (Co'try NW)

Robinson, Peter (Belfast E)

Roche, Mrs. Barbara

Rogers, Allan

Rooker, Jeff

Rooney, Terry

Ross, Ernie (Dundee W)

Rowlands, Ted

Ruddock, Joan

Salmond, Alex

Sedgemore, Brian

Sheerman, Barry

Sheldon, Rt Hon Robert

Shore, Rt Hon Peter

Short, Clare

Simpson, Alan

Skinner, Dennis

Smith, Andrew (Oxford E)

Smith, C. (Isl'ton S & F'sbury)

Smith, Rt Hon John (M'kl'ds E)

Smith, Llew (Blaenau Gwent)

Snape, Peter

Soley, Clive

Spearing, Nigel

Spellar, John

Squire, Rachel (Dunfermline W)

Steel, Rt Hon Sir David

Steinberg, Gerry

Stevenson, George

Stott, Roger

Strang, Dr. Gavin

Straw, Jack

Taylor, Mrs Ann (Dewsbury)

Taylor, Matthew (Truro)

Tipping, Paddy

Turner, Dennis

Tyler, Paul

Vaz, Keith

Walker, Rt Hon Sir Harold

Wallace, James

Walley, Joan

Wardell, Gareth (Gower)

Wareing, Robert N

Watson, Mike

Welsh, Andrew

Wicks, Malcolm

Wigley, Dafydd

Williams, Rt Hon Alan (Sw'n W)

Williams, Alan W (Carmarthen)

Wilson, Brian

Winnick, David

Wise, Audrey

Worthington, Tony

Wray, Jimmy

Wright, Dr Tony

Young, David (Bolton SE)

Tellers for the Noes :

Mr. Jack Thompson and

Mr. Jon Owen Jones.

Question accordingly agreed to .

Bill accordingly read a Second time .

Ordered ,

That Clauses 28, 46, 72 and 77 be committed to a Committee of the whole House ;

That the remainder of the Bill be committed to a Standing Committee ;

That, when the provisions of the Bill considered, respectively, by the Committee of the whole House and by the Standing Committee have been reported to the House, the Bill be proceeded with as if the Bill had been reported as a whole to the House from the Standing Committee-- [Mr. Dorrell.]

Committee tomorrow .

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Column 263

Civil Legal Aid

Motion made, and Question proposed, That this House do now adjourn.-- [Mr. Chapman.]

10.32 pm

Mr. Michael Stern (Bristol, North-West) : Earlier this year, there was considerable discussion on the extent to which legal aid should be available in civil cases. My hon. Friend the Minister will recollect that I was not backward in supporting the policy of the Government--that civil legal aid should remain generally available, with some readjustment of income scales. As my hon. Friend will be aware from our subsequent correspondence, information coming to hand over the past few months has given me cause substantially to revise that opinion and I must admit that I am now very doubtful about the utility of legal aid in civil cases and about whether it fits at all into an equal opportunity society.

My hon. Friend will be aware that my doubts arise from two cases, both of them in my constituency and both involving a legal action between one party fully supported by the legal aid system and one party who has not only had to find all the legal costs of the action but cannot hope to recover any costs if successful in the action. The case of Rolfe v. Harries is the sort of boundary dispute that occurs too often in a suburban area where lawyers have been less than 100 per cent. accurate in drawing up the title deeds. It was the sort of dispute that would normally have to be settled by some means short of legal action, simply because neither side could possibly afford the potential cost.

Unfortunately, in that case, one side, namely Mr. Rolfe, could afford the potential cost, as he was entirely supported by legal aid, despite the fact that, at every stage, it was clear to all the lawyers concerned except the Legal Aid Board that his case had not one whit of merit. Although, on two separate occasions, the court has come to the identical conclusion about the merits of his case, the fact remains that Mr. Rolfe was able to pursue it in the knowledge that the costs to him would be insignificant, whereas, having won their case, Mr. and Mrs. Harries were faced with costs which to most people would be ruinous and which would certainly have had a significant effect on their standard of living in retirement. The case of Jones v. Sinton, a dispute over a claim by Mr. Jones for a share in the successful business started by Mr. and Mrs. Sinton, is again one which would normally have been settled by agreement if Mr. Jones had not been able to obtain the full support of the Legal Aid Board for a claim to take over the business or a substantial part of it from the people who set it up. Again, Mr. and Mrs. Sinton face at least substantial financial hardship even if they win the case, as they are advised is highly likely, because they have been forced to enter into a legal action against a litigant with the full resources of the state behind him. That is clearly a classic no- win situation. In correspondence in those two cases, my hon. Friend the Minister has stated that the percentage of legally aided cases where judgment was against the legally aided client has fallen constantly over the past decade and currently stands at less than 10 per cent. I find that statement very worrying. What was the percentage a decade ago? We must remember that the percentage represents cases where injustice has been created by the intervention of the state. Clearly, 10 per cent. of cases in which the Legal Aid Board

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Column 264

was wrong is much too high, because of the consequences of the board's getting it wrong, but at no stage has either of my constituents received so much as an apology from the board for getting it wrong. After all, my constituents cannot sue the Legal Aid Board for negligence in deciding whether there was a reasonable case for action, as clearly it was negligent in the case of Rolfe v. Harries and might prove to have been negligent in the case of Jones v. Sinton.

In addition, although my hon. Friend the Minister has suggested in the case of Jones v. Sinton--no one has made a similar suggestion in the case of Rolfe v. Harries--that my constituents could apply to the Legal Aid Board for certification to be withdrawn in respect of Mr. Jones, they are advised by their own lawyers that they, the lawyers, do not know of any case in which such an application has been successful. It would be interesting if my hon. Friend would confirm that the percentage of such successful applications--that is, for the Legal Aid Board to reconsider a patently wrong decision--is considerably less than the 10 per cent. of cases in which the Legal Aid Board gets it wholly wrong.

I have already pointed out that, win or lose, the unaided litigant cannot recover his costs except in the case in which the unaided litigant suffers severe financial hardship. A non-lawyer such as myself might have assumed that the potential loss to the owners of a successful small business, in which all the proprietor's funds are committed to the business, or the substantial reduction of funds set aside over a working lifetime would amount to severe financial hardship, but clearly it does not. I should be interested to know how much room there is between the definition of severe financial hardship used by the Legal Aid Board and entitlement to legal aid. I suspect that there is not much.

The worries I have which are aroused by those two cases are, however, much wider. It is clear that the Legal Aid Board can be fooled by someone claiming financial hardship. Common sense says that an organisation that has fewer resources than the Inland Revenue and the fraud squad will be fooled some of the time, but the consequence of its being fooled falls entirely on a random victim. It is clear that there needs to be some system whereby the Legal Aid Board can be called to account for, and to pay compensation for, its own mistakes.

Above all, the two cases demonstrated to me--this is why I am drawing the matter to my hon. Friend the Minister's attention--that there is something desperately wrong with a legal system in which, by the offer of maintenance in a legal action, the Legal Aid Board can effectively pick, and indeed select, winners.

Without civil legal aid, many people have said that we have already reached a situation where civil justice through the courts is available only to the rich or to the insured. With civil legal aid, we have introduced the additional element of the state using taxpayers' funds like dice in a craps game, and that is clearly wrong. If the state is unable to withdraw from civil legal aid--I am sure that philosophically my hon. Friend would agree with me--that legal aid which consists of putting the resources of the state behind one individual and against another when they are both citizens must be intrinsically wrong. If civil legal aid cannot be withdrawn entirely, it should be severely cash-limited and available only in certain types of case, for example matrimonial cases, as against the random scattershot approach of the dispensing of injustice which has been thrown up by the two cases.

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Column 265

10.42 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor) : I congratulate my hon. Friend the Member for Bristol, North- West (Mr. Stern) on securing the debate, and thank him for the unfailing and characteristic courtesy with which he has dealt with the exchanges which preceded it.

My hon. Friend has referred to the support he gave last year to the eligibility changes for legal aid. I did not need reminding of that support, which was most appreciated. I am sorry that my hon. Friend has since become doubtful of the wider benefits of the legal aid scheme. I hope that tonight's debate will go some way towards removing some of those doubts.

My hon. Friend has written to me on a number of occasions about the case he has raised tonight, that of Mr. and Mrs. Harries, and once about the Sintons. As I think he appreciates, I cannot intervene in the way that the Legal Aid Board handles any particular case. Nor should my comments be taken to refer to the reasonableness of a grant of legal aid in the case in which the Harries were involved, or the ongoing litigation concerning the Sintons' business. However, there are two main points of wider concern to answer : the extent to which the legal aid scheme may permit hopeless litigation to be brought, and the financial consequences for a successful defendant facing a legally aided plaintiff. I will deal with each of those in turn. Before the introduction of the legal aid scheme almost 50 years ago, it was possible for an individual of limited means to pursue a spurious claim through the courts by way of a speculative action, safe in the knowledge that, should he lose, his opponent would be unlikely to find it worth while trying to recover costs against him due to his impoverished circumstances. Over the years, the legal aid scheme has evolved into the system we know now and, while it may not be perfect, it is a great improvement on what occurred before. A number of measures have been incorporated into the legal aid scheme to ensure that, as far as possible, privately paying clients are protected against having unjustifiable or even ludicrous cases brought against them by those who fall within the financial eligibility limits for legal aid. Indeed, today's legal system offers more benefits to its potential users than a system that does not include a legal aid scheme.

One of the measures adopted by the scheme which goes some way towards preventing spurious claims is the merits test. In addition to having to qualify financially for legal aid, an applicant must satisfy certain tests as to the merits of his case. An applicant must be able to show the Legal Aid Board--the granting authority for civil legal aid--that he has reasonable grounds for taking, defending or being a party to proceedings. He must also be able to show that his case has a reasonable prospect of success. The tests do not stop there. It must remain reasonable, as the case develops, for it to continue to receive public funding.

When the board makes its initial decision to grant a legal aid certificate, it has before it only one side of the argument and it must make its decision based on the facts before it. However, the opponent, or someone else entirely, may have information which puts the assisted person's case in an altogether different light. The Legal Aid Act 1988 therefore gives an opponent or anyone else the opportunity to make representations to the Legal Aid Board against the grant of legal aid. That is not merely a

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