PARLIAMENTARY DEBATES

HOUSE OF COMMONS

OFFICIAL REPORT

Third Standing Committee on Statutory Instruments, &c.

DRAFT CIVIL LEGAL AID (SCOPE) REGULATIONS 1993

Tuesday 18 May 1993

LONDON: HMSO

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1

The Committee consisted of the following Members:

Chairman: Dr. John G. Blackburn

Bermingham, Mr. Gerald (St. Helens, South)

Boateng, Mr. Paul (Brent, South)

Gale, Mr. Roger (Thanet, North)

Grant, Sir Anthony (Cambridgeshire, South-West)

Harris, Mr. David (St. Ives)

Howell, Mr. Ralph (Norfolk, North)

Janner, Mr. Greville (Leicester, West)

Knight, Mr. Greg (Derby, North)

Maclennan, Mr. Robert (Caithness and Sutherland)

Maitland, Lady Olga (Sutton and Cheam)

Marlow, Mr. Tony (Northampton, North)

Mellor, Mr. David (Putney)

Milburn, Mr. Alan (Darlington)

O'Brien, Mr. Mike (Warwickshire, North)

Harris, Mr. David (St. Ives)

Prentice, Mrs. Bridget (Lewisham, East)

Taylor, Mr. John M. (Parliamentary Secretary, Lord Chancellor's Department)

Waterson, Mr. Nigel (Eastbourne)

Wicks, Mr. Malcolm (Croydon, North-West)

Mr. F. A. Cranmer Committee Clerk

2
3 Third Standing Committee on Statutory Instruments, &c. Tuesday, 18 May 1993

[DR. JOHN G. BLACKBURN in the Chair]

Draft Civil Legal Aid (Scope) Regulations 1993

10.30 am

The Parliamentary Secretary, Lord Chancellor's Department (Mr. John M. Taylor): I beg to move, That the Committee has considered the draft Civil Legal Aid (Scope) Regulations 1993. The draft statutory instrument is designed to extend the legal aid scheme to provide civil legal aid to cover proceedings in magistrates courts under sections 20 and 27 of the Child Support Act 1991. Section 20 of the Child Support Act 1991 provides a right of appeal for a person aggrieved by the decision of a child support officer. In that type of case a child support officer in the employ of the Child Support Agency makes a decision, on the facts available to him or her, whether an alleged parent is or is not the parent of the child and whether maintenance should be paid by that parent in respect of the child. Appeals against those decisions are most likely to be made either by the actual parent or by the alleged parent and the respondent will be the agency, not the alleged parent. When the appeal involves a question of parentage, it will be heard in a family proceedings court. Section 27 of the Child Support Act 1991 applies when a child support officer is considering whether to make a maintenance order against a person who denies being a parent to the child. The Secretary of State for Social Security, or the person with care, may then apply to the court for a declaration as to whether or not the person is the child's parent. The respondent in such proceedings would be the alleged parent. It is intended that that type of proceeding would commence in the family proceedings court and, as with Children Act 1989 cases, if the complexity of the case requires it, would transfer up to either a county court or the High Court. Proceedings in civil courts would fall within the current scheme, and I propose to extend the scope of the legal aid scheme to provide full civil legal aid to cover proceedings in magistrates courts for proceedings under section 20 or 27 of the Child Support Act, subject to the normal means and merits tests. I have tabled a negative resolution statutory instrument in respect of remuneration for applications made under the Child Support Act. Remuneration in respect of such proceedings will be made at the rates specified in schedule 2 of the Legal Aid in Family Proceedings (Remuneration) Regulations in the same way as other family work, save for Children Act care proceedings, for which separate rates of remuneration exist. The draft regulations were approved in another place on 10 May. 10.33 am

Mr. Paul Boateng (Brent, South): We welcome the extension of the legal aid scheme into an area where, quite properly, those who are affected by sections 20 and 27 of 4 the Child Support Act 1991, should have representation and advice. That is clearly in the interests of all parties concerned and in the interests of justice. We welcome that, not least because of the specific importance of ensuring that children do not suffer as a result of the breakdown of relationships or because of the failure of one of the parties to maintain and support them. Our concern lies with the Minister's reference to what he described as the normal means and merits test, which will apply to the extension proposed by the order. My colleagues and I might feel it necessary during our proceedings to spend time considering that. We have no problem with merits. The legal aid system must take into account the merits of each application in terms of the chances of success and reasonableness of the action. Our problem is with the means test and with the way that it is being applied across the board under recent changes in the eligibility rules for legal aid. I have an example for the Minister, to which I would welcome a response either today or in due course. It has been brought to our attention by a well-known firm of solicitors in Stockton-on-Tees. The firm speaks for many members of the profession when it expresses concern in that regard. Mr. Scott of Bolsover Manning Scott and Co., writes to express that concern, particularly in relation to the green form, which is the stage before an application would be considered under the regulations. He refers to a statement made by the Lord Chancellor about the changes in the legal aid eligibility rules. The Lord Chancellor said: "What I have done is protect right across the board the subject matters presently covered by legal aid, those who need legal aid the most. Those who are at income support level will get it free." The reality on the ground, however, among legal practitioners throughout the country, has been very different. Mr. Scott's example is well worth considering. His clients are an elderly couple with a joint capital of £300 and a joint income of £94.20. They are left with a weekly disposible income of £69.20 after the partner allowable deduction of £25. That amount is in excess of the £61 a week allowed under the scheme. There is a problem, which will apply under the order as it applies right across the legal aid system. Those clients would qualify for £1.05 a week income support. That is so little that they have not applied for it. One can well understand that. They have worked hard all their fives, have a little disposable capital and do not want to apply for income support. The result of their not being on income support is that they do not qualify for advice and assistance under the green form scheme. Mr. Scott points out that there is clearly a large number of pensioner couples in the £86 to £102.69 a week income bracket who have not applied for income support and who, as we speak, are being refused legal aid. The Lord Chancellor did not have such persons in mind when he said that those who are at the income support level will get legal aid free. Had he had them in mind, that statement would not be true. We can only presume that the Department has forgotten that category of persons. We make a point this morning, and will continue to make it on behalf of that category of persons and others who are directly affected by the measure—single parents with dependent children, who might find themselves in a similar position. The current means test requires amendment, so that those who qualify for income support at that level but who, for reasons that we can all understand and which provide the Exchequer with limited relief, do not apply for 5 it, will not be disadvantaged by the current legal aid means test rules. I hope for a response from the Minister today or in due course.

Mr. David Harris (St. Ives): I am puzzled by what the hon. Gentleman said. If there is a problem, surely it will spur on those who are eligible for income support to apply for it. End of problem.

Mr. Boateng: But do we want them to apply for it?

Mr. Harris: Yes.

Mr. Boateng: That must be a matter for them. I am very surprised to hear that from a Conservative Member. The hon. Gentleman seems to be suggesting that we should drive those people into a frame of mind that makes them dependent on the state. I do not happen to believe in doing that. People should apply for income support as and when they feel that they need to do so. They should not apply for income support for the purpose of obtaining legal aid. That is quite wrong and it would force people on to the dole. I draw the anomaly to the attention of the Committee in the hope that it will be recognised. We do not want to force people into a state of dependency. The purpose of the welfare state should be to lift people up, not drive them down into dependency on the state. 10.41 am

Mr. Greville Janner (Leicester, West): I wholly support my hon. Friend the Member for Brent, South (Mr. Boateng). There are two problems. One is the extension of the scope of the regulations and the other is the extension of the question of means. We welcome the extension of the regulations. I would like them to be extended to two other aspects of the law. One aspect involves industrial tribunals, where large sums of money are at stake and there is no legal aid at all. I feel a little churlish about raising the matter, because the Government are in the process of doing what many previous Governments, including Labour Administrations, should have done—that is, extending the powers of industrial tribunals. They will shortly be able to deal with disputes over contracts of employment, but legal aid will not be available for such disputes in a tribunal, whereas it will be available in a court. That will lead to a ridiculous situation in which people will almost be forced to bring cases to court so that they can get legal aid, although it is the Government's intention, fully supported by the Opposition, that such cases should go to tribunals where the procedure is swifter and less expensive, but where the law, unfortunately, tends to creep in. The second aspect is defamation. Anyone who has been libelled—some of us have occasionally encountered problems with the media—knows that to attack the media and bring legal proceedings against the press, one must be immensely rich. If one is immensely rich, as Robert Maxwell was, one can keep the media off one's back. If not, one has had it. That leads me directly to the question of means. There is justice in this country for people who are very rich, because they can afford to buy it. There is no justice for people in the middle. I welcome the fact that justice is being extended to people who have very limited means, but most people in the middle cannot get justice. When I ask for an extension of legal aid, someone usually pops up—my hon. Friend the 6 Member for Bolsover (Mr. Skinner) is a prime example—and says, "Bloody lawyer, feathering his own nest." I have no feathers in my nest any more, at least in that respect, as I do not practise in that aspect of the law, so I can say that that is rubbish. It is extremely unfair that people who are just over the poverty level cannot get justice, representation or help. Whether it is for matters involving children, marriage, money or homes, they cannot get legal aid and they cannot afford to go to court without it. That is gross unfairness, which is not and cannot be dealt with by the measure, but I greatly hope that the hon. and learned Gentleman will agree with me—

Mr. John M. Taylor: I am not learned, unlike the hon. and learned Member for Leicester, West (Mr. Janner).

Mr. Janner: The hon. Member, who should be learned, and who is learned in fact if not in name, will perhaps venture to agree publicly to find out whether we can take further steps in a further instrument to bring other aspects within the scope of legal aid and to enable more categories of people to be protected by the law, instead of being unprotected by the vast winds of unfairness that blow around our constituents, wherever they might be. 10.45am

Mr. Malcolm Wicks (Croydon, North-West): I rise, despite the fact that I am not a lawyer, to contribute to the discussion.

Mr. Taylor: Do not worry about that.

Mr. Wicks: I do not. I shall ask the Minister a genuine question. I do not know the answer. We are dealing with, typically, an alleged father who goes to court to argue about whether he is the father of the child in question. When are the means assessed for legal aid? The court has to decide whether a certain man is the father. If he is judged to be the father, depending on his income, he might have to pay £20, £30 or £40 a week in child maintenance or support. That affects his means or his net income. Is the decision about whether he should receive legal aid and advice based on his means before or after the judgment is made? If the court judges him to be the father, his net income might suffer by £30 or £40 a week, and that will affect his ability to pay his legal costs. The question concerns what means are assessed and when. 10.46am

Mr. John M. Taylor: I thank the hon. Member for Brent, South for his welcome. I do not suppose that I could say that I was surprised that he took this morning's business away from the issue of scope to that of eligibility. I do not cry "foul" on that count because eligibility is an essential current debate and it engages the attention of people who think seriously about the subject. The essence of this morning's business is scope. The statutory instrument extends scope. I think that that is why the hon. Gentleman welcomed it. He referred to an individual case and to a firm of solicitors. He was gracious enough to give me the opportunity to reflect on that and provide him with a reply at a future date. I shall take that option because it concerns an individual case. 7 I shall now embark on something slightly controversial, because it is perhaps at the edge of a debate about legal practice. It requires further attention and development. I take the opportunity to say in Committee—I am not sure whether I have said it publicly before—that there is a growing perception that green-form legal aid, and I quote the hon. Gentleman, is a stage before legal aid. To put it in my terms, it is the nursery slopes towards or a prelude to a legal aid application proper. I am not sure whether that developed perception is correct and that practitioners regard themselves as developing through a green form application to a full grant of legal aid. If their clients are eligible for a full grant of legal aid, they should apply for a full grant of legal aid straight away, for which 48 per cent of households are eligible.

Mr. Boateng: I would hesitate to interrupt the Minister, but I am much obliged to him for giving way. The Minister misunderstands the nature of practice, which is not entirely surprising given the length of time he is away from it. The reality of professional practice as a solicitor is that people will come in off the street and want some legal advice. As a result of that advice, they might take the matter no further. As a practitioner, the last thing one wants to do is to sign them up for the whole process there and then. That was never what the legal aid scheme was designed to achieve. It ensures that people act on the basis of the best possible advice available to them and do not embark on a potentially lengthy process of litigation but get advice immediately. To urge practitioners, as the Minister seemed to suggest, not to bother with using the green form but to opt for full-blown legal aid, does not seem to be sound advice. Certainly, that advice is not designed to meet the needs and attract the consent of the Treasury, which seem to be the major preoccupations of Ministers in the Lord Chancellor's Department.

Mr. Taylor: The hon. Gentleman usually engages me in good humour, and I shall test that proposition by saying that when I conducted my first legal aid case he was probably still at school. At that time, looked back upon by many Opposition Members as a golden age, there was no green form, and practitioners went straight to the full grant form. I do not want the legal profession to imagine that the arrival of a client through the door is an opportunity to opt for legal aid twice—we do the nursery slopes on the green form and then go into the full legal aid application. I have encountered no resistance to my saying that it is the most generous system of legal aid in the world. Civil legal aid is available to 48 per cent of households, and criminal legal aid is available to far more than that, with almost no upper limit. I refer briefly to the remarks of the hon. and, in the context of parliamentary idiom, properly learned Member for Leicester, West. He is an expert on employment law. When industrial law began to develop very rapidly in the early 1970s, he recorded many learned texts on the then new phenomenon of cassettes which many of us played in our motor cars. We learnt our industrial law from our master's voice. The hon. and learned Gentleman has frequently said that he would like legal aid to be available for industrial tribunals. I should like those tribunals to be 8 sufficiently informal that legal aid was not required, and we have so far fought a draw on that point. However, we can both see each other's point of view in a civilised way. More seriously, the hon. and learned Gentleman mentioned matters concerning defamation. The Committee knows that he bore a number of unfair criticisms with considerable fortitude. I sympathised with him throughout, and I am glad that they all worked out. However, I cannot see legal aid being available for defamation. Not long ago, I was asked to draw a contrast between legal aid and the national health service. One's health is an objective matter of fact—one knows whether one is well or ill. None of us wants to be ill, and we all want to be well. However, when one is ill, one seeks medical services. Legal disputes are more subjective; we can decide whether to contest a matter. The parallel with the national health service breaks down. If taxpayers' money were granted to everyone who had a slight or a dispute to pursue, there would be no end to it. Since legal aid was introduced in the 1940s, no Government have seriously considered extending it to defamation cases.

Mr. Janner: I did not suggest that anyone who has been slighted should receive legal aid to sue, because litigation would then be constant, and the only sector of the economy to flourish would be the courts that dealt with defamation. I suggested that the same rules should be applied to applicants for legal aid for defamation as to others; they must have a reasonable prospect of success. However, the hon. Gentleman's point is valid; people often have the choice whether to sue, but often they may not have the choice whether to contest if someone sues them.

Mr. Taylor: Yes. Of course, it is more true in the criminal system that a man might be faced with a charge. That may be one of the most important arguments in aid of the fact that, whereas, as the hon. and learned Member for Leicester, West said, the hon. Member for Bolsover is often critical of people who receive criminal legal aid. Our culture and law are highly receptive to the idea that almost anyone on a criminal charge must be a candidate for consideration to receive the resources to defend himself. The hon. Member for Brent, South spoke of the gap between the very poor who are aided and the very rich who find it easy to go to law. The hon. Gentleman should reflect on the measurement of that gap. Civil legal aid is available to 50 per cent, of households. The founding philosophy of legal aid in the 1940s was that it should be available to people of poor and moderate means. Society is responding to the concept of poor and moderate means by making half of society eligible. That is fair and just it is not an over provision but there is no superfluity of resources to do what everyone might like to do in every respect. The hon. Member for Croydon, North West (Mr. Wicks) prefaced his remarks by saying—seemingly self-deprecatingly, but almost certainly not—that he was not a lawyer. The hon. Gentleman probably knows more about this subject than any other Member of Parliament. The drift of his question was whether a maintenance order made against a parent or an alleged parent should be considered as an overhead that that parent had to meet in assessing the parent for legal aid. The position is that the participant in legal proceedings is assessed for legal aid on the circumstances—for example, incomings, outgoings, liabilities and assets—as they were at 9 the time that the application was made. Legal aid is granted in the light of those circumstances, alongside a merits test. If the person's circumstances change in consequence of the proceedings and the liability imposed upon them, that would not restrospectively affect the grant of legal aid, which would be on the means as they were ante the proceedings. I offer the hon. Gentleman that answer in good faith. I had not encountered the question before, and I shall discuss the matter with my officials. If I have got it wrong I shall write to him and circulate Members.

Mr. Wicks. I am grateful for the Minister's answer to my genuine question. We have a new interface between two means-tested provisions: child support, which depends on the father's means, and legal aid, the granting of which 10 depends on the means of the father. Therefore, that is an interesting interface. I should be grateful if the Minister would look into the matter further, as he has offered.

Mr. Taylor: I shall study that matter further. I conclude my remarks on behalf of the Government.

Question put and agreed to.

Resolved, That the Committee has considered the draft Civil Legal Aid (Scope) Regulations 1993.

committee rose at Eleven O'clock.

THE FOLLOWING MEMBERS ATTENDED THE COMMITTEE:

Blackburn, Dr. J. G. (Chairman)

Boateng, Mr.

Gale, Mr.

Grant, Sir Anthony

Harris, Mr.

Howell, Mr. Ralph

Janner, Mr.

Knight, Mr. Greg

Maitland, Lady Olga

Mellor, Mr.

Taylor, Mr. John M.

Waterson, Mr.

Wicks, Mr.