Legal Aid Bill [Lords]

Part of the debate – in the House of Commons at 4:40 pm on 4 May 1988.

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Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton 4:40, 4 May 1988

I declare an interest, because when I can find a spare moment I am a practising lawyer at the criminal Bar, which means that I could well be affected by the provisions of the Bill. I am also the chairman of the joint all-party parliamentary barristers' group.

The right hon. and learned Member for Aberavon (Mr. Morris) has said that this is a money Bill that has the dead hand of the Treasury all over it. The dead hand of the Treasury needs to be all over it. The philosophy of financial freedom in Government affairs died with the previous Labour Government. The secret of the success of the present Government, apart from sound leadership, has been financial control. There is nothing wrong with the principle of financial control provided that the operation of the legal aid scheme is independent of the Government.

There is no doubt that the tender plant of free legal advice and assistance for those who could not otherwise obtain such advice has grown over 40 years into a large and unruly tree. The tree has now to be trimmed, as any plant needs to be trimmed. It has to be attended to and made more productive. The Bill is therefore timely and the Government's main proposals are sensible and necessary.

It is alarming that there should be so much opposition to the Bill from those who are most intimately concerned with the issues that it raises—for example, the Bar, the Law Society and assistance agencies such as the National Association of Citizens Advice Bureaux. Have the Government got it all wrong or have they got it more or less right, the experts having misunderstood it and got it all wrong? The Government cannot be accused of malice towards the legal profession, still less to those who need legal services. The Government are advised by those who have day-to-day knowledge of the working of the system and its needs, people whose very purpose is to analyse the working and to improve the operation of the legal system.

It is possible for men and women of good will to start by fearing the worst and then to find elements that confirm their fears and thereby to come to wrong conclusions. We know how that human process works from our experience in this place.

Two things emerge thus far from the Bill. First, it contains a number of provisions that understandably alarm those who are looking to be alarmed. Everything is to become more centrally controlled with future action left largely to regulations. From Ministers' speeches it is clear that the Government are worried about the lack of proper financial control of spending on legal aid. This issue was brought out clearly in the 1986 interdepartmental scrutiny of the efficiency of legal aid. Such worry usually presages cuts—that is the experience of parliamentarians—and that would be at a time of greatly expanded activity due to the avalanche of legislation that the Government have perpetrated.

Who will suffer if there are cuts? The very poorest may not suffer, but what about those who are not desperately poor? What about the legal profession? The circumstances are certainly there for lawyers to fear the worst.

That leads me to the second conclusion that the passage of the Bill draws from me. The legal profession and those who are concerned with legal advice require reassurance on the likely effect of the Bill on their work and upon the sort of service that it will do so much to provide for those who will need to use it. There is a need also for reassurance about the independence of the scheme from the Government. My hon. and learned Friend the Solicitor-General has given some reassurance this afternoon, but I think that more needs to be given. It is not unreasonable to expect that further reassurance to be forthcoming.

I shall draw attention to issues that I know are concerning the Bar, some of which have been alluded to already by the right hon. and learned Member for Aberavon, who is a vice-chairman of the joint all-party parliamentary barristers' group and who has a close understanding of the legal professions.

First, at a time when welfare state activity is proliferating and people's rights are increasing and expanding, it is no longer good enough for tribunals dealing with social security and employment, for example, to be outside the legal aid scheme, so that poor or poorer people do not get the advice or support that they need to guarantee their civil rights. If we are to overcome this shortcoming, of course, there will be a need for more expenditure. But there is no point in giving individuals rights that cannot be protected or ensured.

Secondly, if there are to be enough lawyers to do the job that is required, the work must be attractively enough paid to make their work worth while. It may be that there have never been so many lawyers and that lawyers have never been so well paid, but if the removal of the principle of "fair remuneration for work actually and reasonably done" means that the result will be a reduction in the payments that are made, we shall soon see fewer lawyers and a worsening service. There are doubts partly because the White Paper made no recommendation to remove the phrase "fair remuneration for work actually and reasonably done," nor was ther any consultation between the Government and the Law Society or the Bar Council. It is easy to understand why the worst is feared.

If my hon. and learned Friend the Solicitor-General says that there is no intention to reduce the service or the pay, we will be driven to ask why it is necessary to remove something which has always been perceived as a safeguard against any Administration's change of mind. No one doubts for a moment the bona fides of the distinguished and eminent individuals who represent the legal profession as members of the Government, but what if the spokesmen change? It is precisely to remove that sort of fear that I say that it is unnecessary to interfere with the existing provisions and to tamper with words that provide reassurance.

Thirdly, why is it necessary to change the method of introducing changes in civil legal aid by secondary legislation from the existing method of affirmative resolution to one of negative resolution, which weakens parliamentary control over such changes? What is the point of that? How can the professions be reassured? How can the advice industry be reassured if such adverse changes are made without any obvious purpose?

Fourthly, why is it necessary to give the Lord Chancellor the power under clause 20(9) to remove the control of the courts to grant legal aid in criminal matters? The court has the evidence before it and sees the applicant. It has dealt traditionally and speedily with applications for criminal legal aid in a way that has caused the minimum of delay before trial. Is not the court the best judge of whether legal aid is necessary and the extent of it?

Fifthly, should not a defendant have the right of appeal if he is refused legal aid? Sometimes a decision is manifestly unjust and cries out for a reverse decision. It appears that such an appeal is no longer to be allowed.

I have highlighted five matters—perhaps there are others—that cause concern and upon which reassurance is necessary. However, I thank the Government for the assistance that they have given so far as the Bill proceeds through Parliament. First, it has offered the opportunity for two barristers to serve on the legal aid board, which is what the Bar Council requested. Secondly, there is the inclusion of the five Widgery criteria in clause 22(2) by which tests representation should be granted in criminal trials. Thirdly, there is the promise to enable groups of litigants to obtain legal aid to bring class actions, which will help alleged victims of drugs such as Opren to obtain justice. Fourthly, the legal aid advisory committee will remain in place for at least a year, and then it may well continue if it is seen to be useful after a full review has been completed. I might also add my thanks for the general good nature and helpful attitude adopted by my right hon. and hon. Friends when approached by intended groups about various worries.

The publication of the Bill was greeted with shrieks of horror in many quarters. With the Bill's passage through another place, there has been some reassurance and the shrieks have largely become little more than loud grumbles. Concessions have been made and hopefully more will be made. The use of the citizens advice bureaux as a filter for legal action provided by those who best know about the way in which the benefit system works has grown on everyone provided that there will be adequate resources for those organisations to do their job properly. I hope that my hon. and learned Friend the Solicitor-General will give that assurance clearly today as he was not able to give it in his opening remarks.

At the end of the day, the Government have established their bona fides in the matter. My hon. and learned Friend the Solicitor-General has reminded us that legal aid represents one of the fastest growing areas of Government expenditure. The number of people helped has risen from 150,000 some 25 years ago to more than 2 million today, with a fourfold increase in spending since 1979. That greatly exceeds the rise in the cost of living.

But the Government still have work to do on the Bill. They must still continue to reassure its critics. They can do that by helping with further amendments in answer to the anxieties that will be expressed. It is important that the Government do that so that lawyers will want to join the scheme. The service will remain of a high standard only if that happens and only then will my hon. and learned Friend's statement of the aims of the legal aid scheme—to ensure that people with small or moderate means obtain access to legal advice and justice—continue to be fulfilled.