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Clause 7—(Right To And Nature Of Legal Advice)

Volume 465: debated on Tuesday 31 May 1949

The text on this page has been created from Hansard archive content, it may contain typographical errors.

I beg to move, in page 8, line 37, to leave out from the beginning to "and," in line 40, and to insert:

"(a) to swear an affidavit before the person employed to give legal advice that his gross income does not exceed such sum as may be prescribed by regulations made under the provisions of this Act."
This Amendment is somewhat similar to one moved in Committee by the hon. Member for North Edinburgh (Mr. Willis), who stated a fixed sum—I think it was £500 per annum gross. We prefer to leave the income limit to be fixed by regulations which the Secretary of State is empowered to make under the provisions of Clause 12. In the discussion in Committee, the Lord Advocate said of the subsection as it at present stands:
"I agree that it is a bit fluid. I agree that it may be difficult to get strict uniformity in application. I agree that it is probably the most speculative part of the working of the Bill."
Later in the discussion, the Secretary of State took exception to the introduction of the fixed sum which was contained in the Amendment moved by the hon. Member for North Edinburgh, and he stressed the need for flexibility. However, in concluding his speech the Secretary of State said:
"We are quite willing to examine the points raised this morning to see whether any better system can be devised."—[OFFICIAL REPORT, Scottish Standing Committee, 29th March, 1949; c. 268 and 271.]
We consider the wording of the Clause as it stands at present as rather lacking in precision and as unsatisfactory, and we hope, therefore, that the Government will see fit to accept this Amendment which has as its merits both simplicity and flexibility.

As I pointed out in the Committee, this undoubtedly is a difficult part of the scheme which we are putting into operation. Having considered the matter very carefully since then, we still feel that the best way of operating this part of the scheme, namely, the provision of legal advice, is to leave it to the Law Society to work out the best means of determining whether or not a person is entitled to this legal advice. As I indicated in Committee, in order to get uniformity within an area we should probably have to have an inquiry made by an official of the local committee, thereby obviating the necessity of the solicitor making an inquiry in the first instance, and, secondly, getting more uniformity of treatment.

The type of advice which is being given here is oral advice. It is a very flexible type of assistance that is being given. It does not involve any complicated working, and we do not want to

Division No. 162.]


[9.56 p.m

Adams, Richard (Balham)Blyton, W. R.Champion, A. J.
Albu, A. H.Boardman, H.Cooks, F. S.
Allen, A. C. (Bosworth)Bottomley, A. G.Collick, P.
Allen, Scholefield (Crewe)Bowden, Fig, Offr. H. W.Collins, V. J.
Alpass, J. H.Braddock, Mrs. E. M. (L'pl Exch'ge)Colman, Miss G. M.
Anderson, A. (Motherwell)Bramall, E. A.Cook, T. F.
Attewell, H. C.Brook, D. (Halifax)Cooper, G.
Awbery, S. S.Brooks, T. J. (Rothwell)Corlett, Dr. J.
Ayrton Gould, Mrs. B.Broughton, Dr. A. D. D.Cove, W. G.
Bacon, Miss A.Brown, T. J. (Ince)Daggar, G.
Balfour, A.Burden, T. W.Davies, Edward (Burslem)
Benson, G.Burke, W. A.Deer, G.
Binns, J.Callaghan, JamesDelargy, H. J.
Blenkinsop, A.Carmichael, JamesDiamond, J.

make this branch of the scheme too complicated either in its administration or in its working out. We feel that this Amendment would not give that simple working which we desire. It would involve the swearing of an affidavit, with regard to the applicant's gross income, which would be determined by regulation. That, in turn, would mean working out a very complicated scheme of determining what the gross income should be, because a person's real income may vary according to his personal commitments, according to the size of his family and according to quite a variety of circumstances. Therefore, the formula contained in the Amendment is one which we do not think would work out very satisfactorily.

We have to bear in mind the nature of the assistance that is being given and the precaution which we have taken by the payment of the prescribed fee to prevent people coming in off the street to get advice on any old subject under the sun. We feel that by leaving it to the Law Society to work this out we are enabling the Law Society, by trial and error if need be, to get the most desired result, whereas the incorporation of this Amendment would lead to a rigidity which in practice might nullify the scheme. For those reasons we cannot accept the Amendment.

I listened carefully to the Lord Advocate, but I am afraid that I am not satisfied. We feel that this is a matter on which we must stand firm. It was discussed in some detail in Committee and strong feelings were expressed upon it.

Question put, "That the words proposed to be left out stand part of the Bill."

The House divided: Ayes, 216; Noes, 82.

Dobbie, W.Lipson, D. L.Roberts, W. (Cumberland, M.)
Dodds, N. N.Lipton, Lt.-Col M.Robertson, J. J. (Berwick)
Donovan, T.Longden, F.Robinson, Kenneth (St. Pancras, N.)
Dugdale, J. (W Bromwich)Lyne, A. W.Ross, William (Kilmarnock)
Ede, Rt. Hon. J. C.McAdam, W.Royle, C.
Edwards, Rt. Hon. N. (Caerphilly)McAllister, G.Scollan, T.
Evans, John (Ogmore)McEntee, V. La T.Segal, Dr. S.
Evans, S. N. (Wednesbury)McGhee, H. G.Shackleton, E. A. A.
Ewart, R.Mack, J. D.Sharp, Granville
Fairhurst, F.McKay, J. (Wallsend)Shawcross, C. N. (Widoes)
Farthing, W. J.Mackay, R. W. G. (Hull, N. W.)Silkin, Rt. Hon. L.
Fernyhough, E.McKinlay, A. S.Silverman, J. (Erdington)
Field, Capt. W. J.Maclean, N. (Govan)Simmons, C. J.
Fletcher, E. G. M. (Islington, E.)McLeavy, F.Skeffington, A. M.
Forman, J. C.MacMillan, M. K. (Western Isles)Smith, C. (Colchester)
Ganley, Mrs C. S.MacPherson, Malcolm (Stirling)Smith, S. H. (Hull, S. W.)
Gibbins, J.Macpherson, T. (Romford)Solley, L. J.
Gitzean, A.Mainwaring, W. H.Sorensen, R. W.
Glanville, J. E. (Consett)Mallalieu, E. L. (Brigg)Soskice, Rt. Hon. Sir Frank
Gooch, E. G.Mallalieu, J. P. W. (Huddersfield)Sparks, J. A.
Grierson, E.Mann, Mrs. J.Steele, T.
Griffiths, D. (Rother Valley)Manning, Mrs. L. (Epping)Stewart, Michael (Fulham, E.)
Guest, Dr. L. HadenMedland, H. M.Strauss, Rt. Hon. G. R. (Lambeth)
Hale, LeslieMesser, F.Stubbs, A. E.
Hall, Rt. Hon. GlenvilMiddleton, Mrs L.Sylvester, G. O.
Hamilton, Lieut.-Col. R.Mitchison, G. R.Taylor, H. B. (Mansfield)
Hannan, W. (Maryhill)Moody, A. S.Taylor, R. J. (Morpeth)
Hardy, E. A.Morley, R.Thomas, D. E. (Aberdare)
Henderson, Rt. Hn. A. (Kingswinford)Morris, Lt.-Col H. (Sheffield, C.)Thomas, George (Cardiff)
Henderson, Joseph (Ardwick)Morrison, Rt. Hon H. (Lewisham, E.)Thomas, I. O. (Wrekin)
Herbison, Miss M.Murray, J. D.Thomas, John R. (Dover)
Hewitson, Capt. M.Nally, W.Timmons, J.
Hobson, C. R.Neal, H. (Claycross)Titterington, M. F.
Holmes, H. E. (Hemsworth)Noel-Baker, Capt F. E. (Brentford)Tomlinson, Rt. Hon. G.
Horabin, T. L.O'Brien, T.Ungoed-Thomas, L.
Houghton, A. L. N. D. (Sowerby)Oldfield, W. H.Wallace, H. W. (Walthamstow, E.)
Hoy, J.Paget, R. T.Watkins, T. E.
Hubbard, T.Paling, Rt. Hon Wilfred (Wentworth)Webb, M. (Bradford, C.)
Hudson, J. H. (Ealing, W.)Paling, Will T. (Dewsbury)Weitzman, D.
Hughes, Emrys (S. Ayr)Palmer, A. M. F.Wells, W. T. (Walsall)
Hughes, Hector (Aberdeen, N.)Parker, J.West, D. G.
Hynd, J. B. (Attercliffe)Parkin, B. T.Wheatley, Rt. Hon. John (Edin'gh, E)
Irving, W. J. (Tottenham, N.)Paton, Mrs. F. (Rushcliffe)White, H. (Derbyshire, N. E.)
Janner, B.Pearson, A.Whiteley, Rt. Hon. W.
Jay, D. P. T.Popplewell, E.Willey, F. T. (Sunderland)
Jeger, Dr. S. W. (St. Pancras, S. E.)Porter, E. (Warrington)Williams, D. J. (Neath)
Jones, Rt. Hon. A. C. (Shipley)Porter, G. (Leeds)Williams, J. L. (Kelvingrove)
Jones, D. T. (Hartlepool)Pritt, D. N.Williams, Ronald (Wigan)
Jones, J. H. (Bolton)Proctor, W. T.Williams, W. T. (Hammersmith, S.)
Keenan, W.Pryde, D. J.Williams, W. R. (Heston)
Kenyon, C.Pursey, Comdr H.Wills, Mrs. E. A.
Kinghorn, Sqn.-Ldr. E.Randall, H. E.Wise, Major F. J.
Kinley, J.Ranger, J.Woodburn, Rt. Hon. A.
Lang, G.Rankin, J.Woods, G. S.
Lee, F. (Hulme)Reeves, J.Yates, V. F.
Leslie, J. R.Reid, T. (Swindon)Young, Sir R. (Newton)
Lewis, A. W. J. (Upton)Rhodes, H.
Lewis, T. (Southampton)Ridealgh, Mrs. M.TELLERS FOR THE AYES:
Lindgren, G. S.Roberts, Goronwy (Caernarvonshire)Mr. Snow and Mr. G. Wallace.


Amory, D. HeathcoatFoster, J. G. (Northwich)Marshall, D. (Bodmin)
Astor, Hon. M.Fyfe, Rt. Hon. Sir D. P. M.Maude, J. C.
Baldwin, A. E.Gage, C.Molson, A. H. E.
Beamish, Maj. T. V. H.Galbraith, Cmdr T. D. (Pollok)Neven-Spence, Sir B.
Bowen, R.Galbraith, T. G. D. (Hillhead)Nield, B. (Chester)
Bower, N.Haughton, Colonel S. G. (Antrim)Noble, Comdr. A. H. P.
Boyd-Carpenter, J. A.Henderson, John (Cathcart)Odey, G. W.
Braithwaite, Lt.-Comdr. J. G.Hollis, M. C.O'Neill, Rt. Hon. Sir H.
Bromley-Davenport, Lt-Col. W.Hulbert, Wing-Cdr N. J.Peto, Brig. C. H. M.
Channon, H.Hutchison, Lt-Cdr. Clark (Edin'gh, W.)Ponsonby, Col. C. E.
Conant, Maj. R. J. E.Lambert, Hon. G.Raikes, M. V.
Cooper-Key, E. M.Langford-Holt, J.Roberts, H. (Handsworth)
Corbett, Lieut.-Col. U. (Ludlow)Legge-Bourke, Maj. E. A. H.Robinson, Roland (Blackpool, S.)
Crookshank, Capt. Rt. Hon. H. F. C.Lloyd, Maj. Guy (Renfrew, E.)Ropner, Col. L.
Crosthwaite-Eyre, Col. O. E.Lloyd, Selwyn (Wirral)Sanderson, Sir F.
Crowder, Capt, John E.Lucas, Major Sir J.Spearman, A. C. M.
Digby, Simon WingfieldMcFarlane, C. S.Stoddart-Scott, Col. M.
Dodds-Parker, A. D.Mackeson, Brig. H. R.Stuart, Rt. Hon. J. (Moray)
Drewe, C.McKie, J. H. (Galloway)Sutcliffe, H.
Dugdale, Maj. Sir T. (Richmond)Macmillan, Rt. Hon. Harold (Bromley)Thomas, Ivor (Keighley)
Duthie, W. S.Macpherson, N. (Dumfries)Thorneycroft, G. E. P. (Monmouth)
Elliot, Lieut.-Col. Rt. Hon. WalterMaitland, Comdr. J. W.Thornton-Kemsley, C. N.
Fletcher, W. (Bury)Manningham-Buller, R. E.Touche, G. C.

Turton R. H.Webbe, Sir H. (Abbey)Young, Sir A. S. L. (Partick)
Tweedsmuir, LadyWheatley, Colonel M. J. (Dorset, E)
Vane, W. M. F.White, Sir D. (Fareham)TELLERS FOR THE NOES:
Wakefield, Sir W. W.Williams, C. (Torquay)Commander Agnew and
Walker-Smith, D.Williams, Gerald (Tonbridge)Mr. Studholme.
Ward, Hon. G. R.Willoughby de Eresby, Lord

I beg to move, in page 9, line 7, to leave out "he thinks."

Subsection (11) says:
"The limitation of legal advice to oral advice shall not prevent the person giving it, where he thinks the person seeking it will need a written note of the advice given or any part of it, from giving him such a note."
We feel that the decision whether a written note should be given of the advice tendered should not be left to the person giving it. We feel that the person receiving the advice, is the one who should know whether he wants a note of it.

My hon. Friend will notice that on the previous page it is stated that the legal advice shall consist of oral advice on legal questions. There is a distinction between legal advice and a legal opinion. When we come to put what the hon. Gentleman calls legal advice down in the form of an opinion, it becomes a much more serious matter than giving a person legal advice as to what he ought to do. It is obvious that a person who calls to seek for legal advice has not any idea whether he wants it written or not, nor would he know beforehand whether it should be written.

Certainly, if he wanted it written, there is no reason why he should not ask that it should be done in writing, if there were any difficulty about his keeping the advice in mind. But if it were made compulsory and obligatory on the person giving the advice, that every piece of advice must be written if the applicant asked for it, it would introduce questions whether that would become a legal opinion which could be brought forward at a later date. This would put the taking of legal advice on to a plane which was not contemplated in this part of the Bill. If the oral advice is that the applicant should have a legal opinion, for example, that would require legal aid, and then it would come under another Clause of the Bill. I can see what my hon. Friend is after, but his proposal would make this part of the Bill quite different from what was contemplated when it was drafted.

Amendment negatived.