Legal Aid and Advice

Part of the debate – in the House of Commons at 10:24 pm on 19th November 1984.

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Photo of Douglas Hogg Douglas Hogg , Grantham 10:24 pm, 19th November 1984

I hope that I shall not fall foul of you, Mr. Deputy Speaker, during my observations on the regulations. With the hon. and learned Member for Montgomery (Mr. Carlile), I support the uprating and feel it would be rather churlish to be too critical of it. However, there are several questions that the Solicitor-General might wish to answer regarding the legal aid regulations. The first point that the House should bear in mind is that, although the two sets of regulations sound similar, they are not in thee least similar. The legal aid regulations cover representation at trial, whereas the legal advice and assistance regulations relate to the green form scheme and to many other non-litigious matters.

There are several other important distinctions between the two regulations. The first and perhaps the most obvious, because it appears on the face of the regulations, is that the financial eligibility criteria are different. Another distinction is that the calculation of disposable income for the purpose of the civil legal aid regulations is done on a much more generous basis than for the green form scheme.

The Solicitor-General may wish to answer some questions that flow from the Royal Commission's report on legal services, which is the latest and by the far the most comprehensive examination of legal aid. It contained three specific recommendations, which touch on the regulations and which the Government have taken no steps towards implementing. The most pertinent recommendation for tonight's purposes is the positive suggestion that the financial eligibility limits for civil legal aid and for the legal aid and advice scheme should be merged and assimilated. The Benson commission report says in terms that the time of an uprating is the time when the financial criteria should be merged. Why have not the Government moved more positively towards assimilating the financial limits for both classes of legal aid? I see no reason why the financial criteria should be different.

The second question that flows from the Benson commission's recommendation follows what the hon. and learned Member for Montgomery said about the cost of litigation. The Benson commission said that, in its opinion, all financial eligibility criteria should be scrapped and that no financial criteria should apply to the regulations or to legal aid. The commission recommends that there should be no cut-off point, but that there should be a sliding scale of contribution, so that those with higher incomes pay much higher contributions. However, anyone who practises in the courts knows that the possession or legal aid is an enormous advantage to a litigant. Those who fall just outside the upper limit are put at a severe disadvantage compared with those who receive legal aid. Do the Government have any long-term intentions of implementing the recommendation of the Benson commission so that the eligibility criteria determined by income and capital are scrapped? I do not press the Government to do it now because I recognise that it will have spending implications, and I despise those who call for economies in general and expenditure in particular.

The final question that flows from the Benson commission relates to the calculation of disposable capital for the purpose of the eligibility criteria. One is obliged to take into account redundancy payments and personal injury damages awards. As we all know, personal injury damage awards frequently include a large loss of earnings element. A certain amount of double counting goes on if we include those sums both in the computation of capital and the computation of income. It was for that reason that the Benson commission said in positive terms that personal injury damages should be excluded from the computation of disposable capital. Do the Government have any long-term plans to implement that recommendation? Incidentally, the Benson commission also recommended that redundancy payments be excluded from the computation of capital. Do the Government have any long-term plans to implement that recommendation?

However, I differ from the hon. and learned Member for Montgomery on the question of the contingency fee fund. Once one recognises that these regulations exclude many people from access to the courts and legal advice, one must ask, "Why not a contingency fee fund?" It has the advantage of being self-financing and would help a number of people who would not have assessments under these regulations. Although I know that this has not commended itself to the Lord Chancellor—and it did not commend itself to the Benson commission—do the Government have any sympathy at all with that proposal?

I have asked four specific questions. I am not calling for immediate increases in public spending, of which I do not approve. However, we are entitled to some clear indication from the Solicitor-General about the Government's long-term views on these matters. Save for those minor considerations, I support the uprating.