§ Order for Second Reading read.
§ Madam Speaker
I have selected the amendment in the name of the Leader of the Opposition. I have had to impose a 15-minute limit on Back-Bench speeches between 7 pm and 9 pm.
§ The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon)
I beg to move, That the Bill be now read a Second time.
The Access to Justice Bill is the most important legal reform of the past 50 years. It is radical and innovative. It is a significant step in restructuring our legal services better to protect the rights of our citizens. It will focus legal services on people's real needs. It presents a considerable opportunity and a considerable challenge to all who work in the law.
Few people who have been through our justice system would argue that it does not need fundamental reform. It is slow, expensive and unpredictable. We are determined to deliver a modern justice system that meets the needs of all our citizens in the modern era. The public demand, and we must deliver, a justice system in which they have the utmost confidence. We will not be diverted from that task by reactionary elements in the legal professions. The legal system is not an end in itself; it is for and about the protection of people and of society. It protects our basic rights. Our legal services must serve the users and society generally, rather than the needs of those operating the system.
The one attempt at reform by the previous Government, the Courts and Legal Services Act 1990, was a half-hearted effort which, ultimately, failed to deliver the changes needed to make the legal world serve the needs of its clients and society. Our intention with the present Bill is to go much further—to reorient legal services away from the interests of lawyers towards the needs of customers and the wider public. That is the central ambition of our reforms and the central aim of this modernisation.
Before dealing in detail with the Bill's provisions, the House will want to examine carefully the content of the Opposition's reasoned amendment. I hesitate to describe the amendment as "reasoned" because, despite its length, it gives little insight into what—if anything—the Conservatives really think about these proposals. They seem to be against them, no doubt for cynical and opportunist reasons, but what do they actually believe in?
Can the Conservatives, who presided over a 20 per cent. cut in eligibility for legal aid while they were in office, and who in 1993 cut more than 25 per cent. of the population out of the green form scheme, really claim now to be the guardians of access to justice? Can members of a party whose Government introduced conditional fees allowing 100 per cent. uplifts now complain four years after the event that that was wrong in principle as it supposedly increases the cost of litigation?
Are the Conservatives against the concept of the Legal Services Commission in principle? Are they against the criminal defence service? Does their concern about 231 imposing statutory restrictions on the Crown Prosecution Service mean that, not unsurprisingly, they are lining up with those reactionaries who want to maintain, or even extend, restrictive practices in the law?
What is most worrying about the reasoned amendment, however, is that the official Opposition do not appear to have read the Bill very carefully. There is no suggestion in the Bill that there will be a system of wholly state-employed prosecutors or defenders. Moreover, the powers that the Bill grants to the Lord Chancellor to alter the rules of the legal professions, far from being unilateral, can be exercised only with the approval of Parliament. Are the Opposition really claiming that that is an insufficient safeguard?
Let me now explain what the Bill actually does. It creates the community legal service which will be responsible for considering the need for civil and family legal services. It will build up a pattern of legal services to meet that need as far as resources will allow. It creates a criminal defence service which will replace criminal legal aid. Publicly funded criminal defence services will continue to be available in all cases where the interests of justice require it.
The Bill makes the success fee in conditional fee arrangements and insurance premiums recoverable in costs; that will greatly extend the use of no win, no fee agreements, ensuring that the successful claimant is not punished by a reduction in damages.
The Bill extends full rights of audience in principle to all lawyers, and sets up a system for regulating the legal profession with a dynamic for further change. It will ensure that civil appeals are heard at the right level and that they are dealt with in a way proportionate to their weight and complexity. It will change the organisation and management of magistrates courts so that they can better serve the public and help with our plans to make the criminal justice system more co-ordinated and speedy.
Why are we introducing the Bill at this time? It is essential that the United Kingdom maintain an effective justice system. Our system of justice has many admirable features—in particular, the many lawyers who work, sometimes without payment, for the disadvantaged and on cases that do not always meet with popular approval.
Access to justice is far from perfect, however. Services available from lawyers can be disproportionately expensive. Instead of predictable prices, those with potential legal cases are intimidated by the prospect of an open-ended bill drawn up after the event. That can discourage not only those with limited means, but the relatively well-off. The system is biased towards court-based solutions, even when alternatives to court may work better.
We have a patchwork quilt provision of legal advice, which has been stitched together over time by solicitors and the funders and providers of advice in the voluntary sector, without any thread of co-ordination. Nor is the quality of legal services always as good as it might be. The volume of complaints that the Law Society's Office for the Supervision of Solicitors receives shows growing dissatisfaction with the services of some solicitors.
§ Mr. Gerry Sutcliffe (Bradford, South)
Does my hon. Friend believe that self-regulation is the reason for the failure of that office? Is there not a need for independent regulation?
§ Mr. Hoon
My hon. Friend is consistently assiduous in pursuing that point and I shall deal with it in more detail shortly.
Between 1991–92 and 1997–98, expenditure on civil and family legal aid rose from £330 million to £634 million, an increase of 92 per cent. During the same period, gross domestic product rose by only 19 per cent. However, the number of people helped fell by 10 per cent. The taxpayer has been paying more for less. Expenditure has been more stable for the past couple of years, but the fact remains that legal aid spending is volatile and cannot be controlled with any certainty.
§ Mr. John Swinney (North Tayside)
Legal aid is a power devolved to the Scottish Parliament, and the Bill will pass through the House of Commons during the period in which the Scottish Parliament will assume its full legislative functions from 1 July. Do any provisions in the Bill impinge on the default powers being given to the Scottish Parliament, and will there be dialogue between here and there on any area of the Bill?
§ Mr. Robert Marshall-Andrews (Medway)
Given the worrying statistic that fewer people were helped over the period that my hon. Friend mentioned, does he accept the Legal Aid Board's finding that a principal reason was the increase in the limits of small claims courts, which took a large number of people out of the ambit of legal aid?
§ Mr. Hoon
That may well be the case, but the cost is rising at a time when the number of acts of assistance are falling. The taxpayer has been paying considerably more and getting considerably less. Expenditure in the financial year just ended was around £1.63 billion—£104 million or 7 per cent. more than in the previous year—which demonstrates the volatility of increases and the change possible from year to year in the present legal aid scheme.
Furthermore, civil legal aid is very restricted. For the most part, only people qualified to claim benefits can use legal aid. Those who have slightly more disposable income, but who still have very modest resources, are effectively excluded.
What are we doing to solve these problems? The Bill is only part of our plans. The White Paper laid before Parliament last December puts the Bill in a wider context, which includes the programme of reform to the civil courts that will come into effect on 26 April, and which will make the cost of cases more predictable and their progress more rapid.
Today, I must concentrate on what the Bill will do to modernise legal services. The first part of the Bill will reform the legal aid scheme to provide the best possible services for people within the constraints of available resources, and by securing the best possible value for money. The Bill will establish the Legal Services Commission to operate the community legal service and the criminal defence service. The community legal service will subsume the existing programme of family and civil legal aid, but its objectives will be wider and more innovative.
The most radical feature of the community legal service is that, for the first time, we will assess the need for legal and advice services and develop the provision of such 233 help in response to that need. In partnership with local funders of legal and advice services, and in particular with local authorities, the community legal service will draw up plans for the delivery of legal and advice services, taking account of identified needs and priorities.
No Government can guarantee that all needs will or can always be met. That is certainly not the case with the existing legal aid system. But we intend for the first time to be in a position to base funding choices on real evidence.
§ Mr. Dominic Grieve (Beaconsfield)
Is not one of the effects of the scheme that the Minister is introducing the fact that, whereas under the old system the state disbursed to help people who did not have enough money to litigate, the state will now choose which forms of litigation it considers socially desirable and therefore worthy of support? Is that a desirable development in a free society?
§ Mr. Hoon
That already happens under the existing scheme. The hon. Gentleman knows that some cases are within the scope of the existing system and some are outside it. If, as we hope to, we bring the overall cost of legal aid under control for the first time, we may also be able to think more carefully about the areas that have historically been excluded, and try to provide financial support. The precondition for that approach is to get the existing scheme under control, however. The previous Government consistently failed to do that, but it is our ambition to be successful.
§ Mr. Nicholas Winterton (Macclesfield)
I am most interested in the Minister's reply to my hon. Friend's question. Is the Government's objective merely to contain or even to reduce the money that the taxpayer gives in legal aid, or is the Minister concerned to ensure that as many people as possible who need justice from our system but need to rely on legal aid to get it, receive help?
§ Mr. Hoon
Our ambition is to control the cost of legal aid and to ensure that we can plan appropriate provision year on year to meet need. That means that we will carefully consider the range of people affected—the most vulnerable people in our society who have legal problems and need legal advice—so that we can direct scarce taxpayers' resources to meeting their needs. The present system does not achieve that, but we are determined that the Bill will right the wrong.
§ Mr. Hawkins
Further to the intervention by my hon. Friend the Member for Macclesfield (Mr. Winterton), will the Minister confirm the simple fact that in the last year for which figures are available, the number of people 234 helped by legal aid increased by 3.2 per cent. whereas legal aid spending increased by only 1.2 per cent? Does that not make my hon. Friend's point for him and undermine the Government's claim that the new scheme is intended to help people? It is not intended to help people; it is simply intended to save money.
§ Mr. Hoon
On the contrary. The hon. Gentleman is not using the most up-to-date figures. That is understandable, because they are probably not available to him. The figures on which he is relying are for the year before last. I have already conceded that for a couple of years there was some slowdown in the rate of increase. However, our best information is that the level of increase for last year is about 7 per cent., which demonstrates the degree of volatility involved.
Within the overall community legal service, the community legal service fund will replace the existing legal aid scheme for civil and family cases. This will secure the provision of publicly funded legal services on the basis of national, regional and local priorities. The Legal Services Commission will, in the light of those priorities, draw up a funding code, which will be approved by the Lord Chancellor and agreed by Parliament. That code will set out the detailed criteria and procedures for deciding whether to fund individual cases.
This approach will be both tougher and more flexible than at present. The funding code will allow different criteria to apply to different kinds of cases and different types of help. We will ensure that help is channelled to the cases that most need support. That means that, where appropriate alternatives to public funding exist, we shall expect them to be used, to allow us to focus scarce public money where the need is greatest and where it can do most good.
Accordingly, this Bill carries through the policy announced last July of requiring most personal injury claims to be taken using conditional fee agreements. Conditional fees are an important means of extending access to justice to the great majority of the population, who have effectively been denied access to the courts by the fear of lawyers' bills. Only the very rich, those with insurance and those poor enough to qualify for legal aid have any hope of achieving real access to justice.
§ Mr. John Bercow (Buckingham)
What does the Minister say to Mr. Phillip Sycamore, the president of the Law Society, who has said that the Government's proposals for conditional fee arrangements involve removing civil rights from large sections of the population and denying them access to justice? I was concerned to see the Minister, who is normally a polite soul, chuntering when I mentioned the president of the Law Society, who is an estimable person and deserves a proper response. As premiums, especially in relation to cases of medical negligence, can be onerous, is not the Minister concerned that people currently eligible for legal aid will find their cost beyond them?
§ Mr. Hoon
The reason for my concern about the hon. Gentleman's comments is that Mr. Phillip Sycamore has not been president of the Law Society for some time. I accept that he was previously president. I do not accept that the system of conditional fees restricts access to justice. The overwhelming evidence of the correspondence that I receive from hon. Members on both 235 sides of the House is that people complain that they cannot get legal aid because they are just above the financial limit. Those people are denied access to justice, which can be secured through no win, no fee agreements which mean that lawyers take the risk and that people can safely rely on the quality of advice that they are given.
The present problem with conditional fees is that they penalise the successful plaintiff by paying the lawyer's success fee out of the damages recovered, thus reducing the compensation. We propose instead to allow the claimant to recover the success fee. We will also make insurance premiums paid by a successful litigant in connection with specific proceedings recoverable by way of costs. That will make the use of conditional fee arrangements fairer and more effective for everyone and place the cost of having to take action in the courts squarely with the individual or organisation whose fault caused the litigation in the first place. For the client, the proposal will ensure that the full damages recovered will be retained, rather than a slice going to his or her lawyers. That is a significant step forward for the operation of conditional fees.
§ Sir Nicholas Lyell (North-East Bedfordshire)
The Minister mentioned the benefits of conditional fee agreements, which we introduced. We recognise, as he does, that they are of benefit, but they are of benefit as an add-on. The Bill will remove legal aid from poor people who have suffered personal injury unless they have cast-iron cases. Deserving but less than cast-iron cases will find it difficult to get lawyers. That criticism has been made by many experienced lawyers on both sides of the House and of the party divide. What has the Minister to say to it?
§ Mr. Hoon
I am slightly surprised by the right hon. and learned Gentleman's opening observation, since the reasoned amendment is critical of the operation of conditional fees and his name has been appended to it; perhaps he, or whoever wrote it for him, did not check its precise contents. On those eligible for legal aid at present, I have every confidence that anyone with a good case will be able to find a lawyer willing to take it, either through their membership of a trade union or other organisation, through insurance or through lawyers being prepared to fund the up-front costs.
§ Mr. Marshall-Andrews
Upon what research does my hon. Friend base that assertion? Where can we obtain it?
§ Mr. Hoon
Conditional fees have operated entirely successfully for some four years. I receive a welter of correspondence from right hon. and hon. Members complaining about the legal aid system. To the best of my knowledge, the Department has received only one letter complaining about the operation of conditional fees. My hon. and learned Friend will be familiar with trade union schemes, which operate in a similar way to no win, no fee arrangements in the sense that union lawyers recover their costs and pay their staff out of the successful cases that they pursue. If they happen to take a case that is not successful, they bear the costs in the same way that lawyers operating conditional fees will bear the costs. Those schemes operate successfully for the benefit of members of trade unions.
§ Mr. Austin Mitchell (Great Grimsby)
My hon. Friend qualified his example by talking of people with a good 236 case. That phrase is important, because many people who now get legal aid have a marginal case that needs to be tested and which they cannot hawk round lawyers to see whether it fits into their portfolio of risk. The problem is that the Bill will lead to cherry picking. Big firms will snaffle the good cases and the difficult cases of people who do not have the time, ability or perhaps the sense to find a lawyer to take them up, especially in places such as Grimsby, will not be followed up.
§ Mr. Hoon
I do not accept that. The great majority of people who are not at present eligible for legal aid face exactly that situation, but they find lawyers who are willing to take their cases on a conditional fee basis. There is no reason why everyone should not have that support. The prize for that is the ability to channel scarce taxpayers' resources into those areas with a greater need. My hon. Friend knows that personal injury litigation operates successfully, and it will continue to do so, notwithstanding the fact that legal aid will not generally be available in most cases. In those circumstances, it will be possible for people to find lawyers willing to take their cases, and the benefit for the Government is that we will be able to release resources to other, more vulnerable people who have not received help from the taxpayer since the legal aid scheme was established.
§ Mr. Hoon
No, because I must make some progress. The legal insurance market continues to develop and innovate. New insurance products specifically linked to conditional fees have come on to the market regularly since October 1997, when we announced our intention to expand the use of conditional fees. Only the other week a policy was launched by Royal Sun Alliance where the premium itself is paid at the end of the case, and only if the case is successful. That will be a significant addition to the policies that are available because it will give lawyers working under conditional fees insurance against losing fees if they are unsuccessful. The benefits for clients are obvious—as with their legal fees, the insurance premium will only have to be paid if the case is won. Thanks to our proposals, that premium will be paid for by the losing defendant.
We nevertheless accept that there may be a limited range of worthwhile cases in which it may be difficult for people to find lawyers to act under a conditional fee. In some exceptional personal injury cases the costs of investigating the strength of the case to the point at which a solicitor can decide whether to offer a conditional fee agreement may be very high. Similarly, some cases may be very expensive and may reach a point where the risk is too great for most firms to carry. I am confident that, as solicitors adapt to working under conditional fees, and as they receive the benefit of the uplifts as well as their costs for concluded cases, they will be able to carry those costs and risks. However to ensure that we do not leave people unable to bring worthwhile cases, we have provided powers in the Bill for the Lord Chancellor to provide by direction that assistance in generally excluded categories of case may be given in prescribed circumstances. We expect in particular to use those powers to support personal injury cases with exceptionally high investigative or total costs.
The criminal defence service will continue to provide assistance, advice and representation in all those criminal cases where the interests of justice require it. We also 237 expect, with the House's agreement, that the Legal Services Commission will itself employ lawyers to provide certain criminal defence services. It is not our intention to create a monolithic, wholly employed defence service. We foresee a mixed economy with both employed lawyers and lawyers in private practice, but the provisions to allow for direct employment to provide those services were removed in another place, largely at the urging of private sector lawyers. We will ask this House to reinstate them.
Most services funded by the Legal Services Commission for both the community legal service and the criminal defence service will be secured through contracts. Contracts are a flexible means of buying services. The Legal Services Commission will use that flexibility to secure the best possible balance of access, quality and price. In due course, especially in areas where volumes are high, I would expect to see much greater use of prices fixed in advance, rather than costs calculated at the end of cases at hourly rates, but we will proceed cautiously and build on experience, so that providers have time to adapt to change.
There is no evidence, as some have claimed, that lawyers will abandon the legal aid scheme rather than work under contracts. On the contrary, applications for franchises have flooded in over the past few months, and the Legal Aid Board now expects to grant at least 5,000 first-round contracts for family work and a roughly similar number of contracts for advice and assistance.
As for the legal professions themselves, we intend to tackle unfair restrictive practices. We believe it right in principle that suitably qualified lawyers should enjoy full rights of audience and rights to conduct litigation. Previous attempts to extend rights of audience and rights to conduct litigation have been tortuous and have produced little of substance. A classic example is the proposal to extend the rights of employed solicitors. After six years of debate, consultation and advice—and yet more consultation, advice and debate—a very small package of additional rights was given to employed solicitors.
Mr. Edward Gamier (Harborough)
The Minister appears to have passed rather quickly from part I of the Bill to part III—he is now discussing much later provisions. It must be an oversight, but the Minister appears not to have dealt with clause 1. What is the Government's view on that?
§ Mr. Hoon
Clause 1 was introduced in another place, and hon. Members will wish to consider the matter in Committee. I anticipate that the Government will want to introduce amendments to replace clause 1—and no doubt the hon. and learned Gentleman and I will have fun discussing exactly what will replace it. As clause 1 was not introduced by the Government, it need not necessarily detain us at this stage.
The Lord Chancellor's Advisory Committee on Legal Education and Conduct—ACLEC—has been responsible for overseeing applications for extending the rights of audience. This Bill will abolish ACLEC and put in its place a new consultative panel with a simplified set of procedures. Although ACLEC has done some good work, 238 the system of which it is part has not succeeded to any great extent in furthering the objective set by Parliament of developing new or better ways of providing legal services with a wider choice of people providing them. The clause that would have allowed full rights of audience to be exercised by all suitably qualified lawyers—by those employed by the Government or other bodies, as much as by those in private practice—was removed in another place. I will ask the House to reinstate that clause.
The Government will introduce an amendment that will enable banisters working in solicitors' offices to exercise rights of audience on behalf of the solicitors' clients. At present, this is not allowed under the Bar's rules. There is also a provision that will allow Parliament to change rights of audience or rights to conduct litigation that are unduly restrictive. We hope not to have to use this power, but it will provide a dynamic for change in the future.
Other changes in the Bill deal with the administration and organisation of our courts. The existing system of civil appeals is convoluted, inconsistent, time-consuming and often expensive. The system is used to spin out cases in no one's interest. The Bill will reform the system and complement the existing programme of reforms in civil courts of first instance by applying the same underlying principle of proportionality.
The Bill also makes several changes to the organisation and management of magistrates courts, which hear 97 per cent. of all criminal cases. The Government have already embarked on a comprehensive programme to rationalise and modernise the administration of those courts. The Bill will facilitate the development of a more coherent geographical structure for the criminal justice system and help improve the management and efficiency of magistrates courts.
§ Ms Hazel Blears (Salford)
Will my hon. Friend confirm that, despite the need to rationalise magistrates courts, he believes that access to justice should be delivered locally? If we are to involve magistrates courts in the partnership to tackle crime and disorder, it is crucial that justice is dispensed within the local area.
§ Mr. Hoon
I accept that point entirely, and nothing in the Bill will prevent the local administration of justice.
The Government intend to introduce several further amendments to the Bill. The first change concerns the handling of complaints against the legal professions—to which my hon. Friend the Member for Bradford, South (Mr. Sutcliffe) referred at the outset. The Office for the Supervision of Solicitors, which is an integral part of the Law Society, is clearly failing to deal adequately with complaints. It was set up in 1996 to deal with complaints of inadequate professional service and of serious misconduct by solicitors. The office is the most recent attempt by the Law Society to get right its complaints systems. It replaced the Solicitors Complaints Bureau, but, like previous attempts, it has not delivered sustained improvement. There is a good deal of concern among the public and on all sides of the House.
§ Mr. John Burnett (Torridge and West Devon)
Information came to me that, last month alone, the Office for the Supervision of Solicitors had to close down 27 law firms. I do not know whether the Minister was aware of 239 that. Do the Government believe that the OSS has sufficient resources to cope with that work and the growth in complaints against solicitors?
§ Mr. Hoon
I am grateful for the hon. Gentleman's point. If I explain the Government's intentions, I may satisfactorily answer his question. If not, I am sure that he will ask it again.
I understand that the legal services ombudsman is likely to report that the OSS has failed to make the necessary progress in the areas highlighted in her last report. She concluded that the OSS needed to resolve complaints speedily; achieve greater credibility in the eyes of complainants, and be seen to provide effective redress where appropriate. The greatest immediate concern is the backlog of 9,000 complaints—a backlog that is increasing. Complaints are not allocated to a case officer for some six months.
We shall therefore table amendments to ensure that the complaints systems of the Law Society and the other legal professions operate in the public interest. We are convinced that we need to extend statutory provision in that area as a matter of urgency.
We propose to establish a new post with the responsibility for setting targets for complaints handling and making recommendations about complaints systems. It will have powers to ensure that legitimate expectations about complaints handling are met. However, we are aware of the efforts that the Law Society is making to put its house in order, so the new powers will be held by an entirely new office. That office might be held by the ombudsman, but no decision has yet been made.
§ Mr. Bercow
Obviously, hon. Members will want to scrutinise in detail the Government's new proposals for the replacement of the Office for the Supervision of Solicitors. Does the Minister accept that many Conservative Members look forward with interest to those proposals and agree with him that the present arrangements are entirely unsatisfactory? I have testimony to that fact from the sad experience of Mr. and Mrs. Philip Stanton from Shabbington in my constituency. In seeking to pursue a claim against their former solicitors, they have had their retirement ruined and suffered extraordinary delay. They will certainly welcome a suggestion that the OSS should be replaced.
§ Mr. Hoon
I would not want to be accused of misleading the House in any way, so I make it clear to the hon. Gentleman that we intend not to replace the OSS but to make it subject to stringent standards and safeguards in handling complaints. I hope that I have provided the reassurance that the hon. Gentleman's constituents clearly require.
§ Mr. John Healey (Wentworth)
Does my hon. Friend recognise that the move towards independent scrutiny and a statutory base for the handling of complaints against solicitors will be warmly welcomed by Labour Members as well as by Conservative Members? Our experience, like that of the hon. Member for Buckingham (Mr. Bercow), is that the OSS is slow and is not taken seriously enough by the profession.
§ Mr. Hoon
I am aware of the concern about complaints handling felt by hon. Members on both sides of the House. 240 As I have made clear to the OSS over the months, one of the most effective tests of whether it is dealing satisfactorily with complaints is the number of letters that are forwarded to me by Members of the House, and that number is causing the Government concern.
The Government have every confidence in the ombudsman. Her office will continue to be needed and her powers will be strengthened. At present, when she considers a complaint referred to her after it has been dealt with by the relevant professional body, she has the power only to make non-binding recommendations about compensation which are sometimes ignored. In future, she will have the option of making binding determinations that will have to be paid by the lawyers in default.
We are also prepared to grant the Law Society's request for additional powers. Those will, in particular, enable the Law Society to play its part in controlling unscrupulous immigration advisers. That was a commitment in our manifesto and is part of the Immigration and Asylum Bill which my right hon. Friend the Home Secretary has brought before the House.
The Government intend also to introduce a modest measure to ensure that the full cost of administering the annual competition for Queen's Counsel is met by those applying and not, as at present, paid for by the taxpayer. Under current legislation, the Lord Chancellor's Department has no power to charge for that time-consuming and costly process, which, in 1998, is estimated to have cost the taxpayer about £120,000. That situation is contrary to our policy on full cost recovery and constitutes a public subsidy for a system of promotion for a profession that hardly needs taxpayers' assistance.
§ Mr. Hoon
We have certainly given some thought to it.
We shall also table amendments to enable the courts to check whether other Government agencies—such as the Department of Social Security, the police or local authorities—hold information on the whereabouts of a "missing" fine defaulter or community service dodger. That will remove one of the biggest obstacles to effective enforcement once responsibility for warrant execution is transferred from the police to magistrates courts. It is not acceptable that those who have been convicted of an offence and who owe a debt to society should be able to get away with their crimes, especially when the taxpayer has to foot the bill, and when an up-to-date address may well be held in other Government records.
§ Mr. Hoon
I shall not give way again; I am sorry.
Barriers to information sharing contributed to the fact that, at the end of 1997, some ₣70 million in fines was unpaid. That undermines the effectiveness of fines as a sentence. The information to be exchanged will be tightly limited to those details that will allow the offender's whereabouts to be traced—essentially the name, last known address and date of birth. It will be used for the specific purpose of tracing an individual so that a warrant may be executed. Wider disclosure will be forbidden. Improved information sharing will lead to more 241 cost-effective warrant enforcement as well as helping to restore public confidence in fines and community penalties.
§ Mr. Grieve
I can now ask the question that I was trying to ask a moment ago. If we are transferring the execution of warrants outside the police force, does the Minister agree that those who will carry out the execution of those warrants, who will be certificated bailiffs, will need adequate powers of arrest if they are to discharge their functions properly?
§ Mr. Hoon
We may have to consider that in Committee. These matters have only recently been developed, and the changes have only recently been worked out, so we can consider that when the Bill proceeds, as I hope that it will, into Committee.
I hope that I have made it clear that the proposals in the Bill are not motivated by any simplistic effort to cut costs. The Government are not out to harm the legal professions. What we want is to create a system of justice that better meets the needs of our people—a system that is accessible to all; that is quick, of high quality, inexpensive, proportionate to the issue at hand and, above all else, fair.
To that end, we shall direct taxpayers' money to the areas of highest priority—to those people who most need help and advice. We will not tolerate unjustified restrictive practices. We will ensure that citizens receive the best possible legal and advice services, whether they pay themselves, they are insured or they are assisted by the state. We shall continue to ensure that those whose liberty is at stake receive appropriate assistance. We want to transform our legal services so that they can best meet the challenges of the next century.
I commend the Bill to the House.
Mr. Edward Gander (Harborough)
I beg to move, To leave out from 'That' to the end of the Question, and to add instead thereof:`this House declines to give the Access to Justice Bill [Lords] a Second Reading because it is likely to reduce access to justice as a result of removing legal aid in civil cases and is likely to increase the costs of litigation as a result of the 100 per cent. uplift in fees under conditional fee arrangements, because the Bill contains no detailed costings or description of the proposed functions of the Legal Services Commission and imposes no statutory restrictions on the ambit of the Criminal Defence Service or the extent to which the Crown Prosecution Service can appear in the Crown Courts, because a system of wholly state-employed prosecutors and defenders creates the danger of miscarriages of justice, and because the Bill grants to the Lord Chancellor constitutionally unprecedented powers unilaterally to alter the rules of the independent legal profession.'I must declare an interest as a practising member of the Bar. I also wish to place on the record my thanks for the help that I have had in preparing my thoughts—but they are my thoughts—for this debate from the Law Society, the General Council of the Bar, Liberty, Justice, the National Consumer Council, the Consumers Association and the National Association of Citizens Advice Bureaux; and from the many individuals from within and outside the legal profession, including my right hon. and learned 242 Friend the Member for North-East Bedfordshire (Sir N. Lyell), and in consumer groups, who have expressed concern about the Bill's contents.
I pay tribute to my noble Friend Lord Kingsland, who led for the Opposition in the other place where the Bill began its life, and to the many other noble, and noble and learned Lords, of all parties and of none, who, in stark contrast to the contributions from the Government in and outside Parliament, raised the debate to the level that the subject deserves.
In the other place, my noble Friend Lord Kingsland described the Bill as a skeleton Bill. On Second Reading, he said that the Bill contained no fewer than 17 new powers for the Lord Chancellor to exercise, either in the form of statutory instruments or in the form of directions. My noble and charitable Friend acquitted the Lord Chancellor of having drafted the Bill in this form because he had not yet made up his mind what to put into it. He assumed that the Lord Chancellor had the terms of the Bill in his head, and that the homework would be easy to complete by January 1999, when the Bill went into Committee in the other place. As it is now the middle of April and we have heard very little more from either the Lord Chancellor or his Minister in the House of Commons, I advise hon. Members to be a little less charitable today.
My noble Friend Lord Kingsland called the Bill a skeleton. Lord Goodhart saw it as three separate Bills. Part IV deals with the new arrangements for appeals, and is in reality an administration of justice Bill. Parts V and VI are a magistrates courts Bill. Those parts of the Bill are largely uncontroversial, and, although they will need to be examined carefully in Committee, I suspect that they will not lead to great arguments of principle. Like, I believe, the hon. Member for Salford (Ms Blears), Conservative Members want to ensure that the local delivery of justice is not merely maintained but enhanced, especially in small towns and rural areas.
I welcome the unification of the stipendiary Bench, although I question whether we need to change "stipendiary magistrates", a term that everyone understands, to "district judges (magistrates' courts)", which is longer and no clearer.
Part II is devoted to Scotland, and I shall leave the Scots among us to grapple with it.
Several parts of the Bill, although important, need not be dealt with now, and can be discussed more fully in Committee. What is of more immediate concern is the Government's approach to the reform—indeed, the effective abolition in most areas of civil law—of legal aid, and what will replace it; the Government's policy with regard to setting up the community legal service and the criminal defence service under the Legal Services Commission; and the Government's decision to give the Lord Chancellor—this Lord Chancellor—unprecedented powers to alter the rules of the hitherto independent legal professions. It is on those aspects in particular that the Opposition take issue with the Government, and it is because of the deficiencies and dangers we fear their plans involve that we shall ask the House to support our amendment tonight.
Our concerns focus on parts I and III of the Bill, which deal with legal services and constitute the first of the Bills within a Bill. The Government have made much use of the English language: not since Orwell wrote "1984" have 243 the public seen a Government make such good use of it. In the field of law reform, they have shown again that they know all there is to be known about manipulating the language; but what they know about what is right and what is wrong, and about what is in the interests of the public whom they govern and what is not, is quite another matter.
In calling this the Access to Justice Bill, the Government hoped to fool us into thinking that that was what it would achieve. In calling their White Paper "Modernising Justice", they fondly hoped we would believe that that was what was planned and would happen. In spending tens of thousands of pounds of public money on pamphlets repeating mantras designed by advertising executives, they feel sure that their message will not be lost. Ministers believe that, through the giving of breathless interviews to the lay and professional press, they are winning the arguments. They will, of course, win the votes, but they show no signs of winning the arguments.
Since the beginning of the debate on legal reform, the Lord Chancellor has known the nature of the problem with which he must deal. As long ago as October 1987, when he addressed the Law Society at its Cardiff conference, he said that the legal aid budget had become a leviathan with a ferocious appetite, and that litigation was too expensive for both the legally aided and the unassisted litigant. He was right. The budget had grown over the past 10 years—although anyone listening to the same man speaking as shadow Lord Chancellor in the years before the last general election would have heard nothing but praise for the Labour legal aid system, and deep scepticism about what the proposals in the Bill and the Lord Chancellor's other reforms now include.
Where the Lord Chancellor was wrong and ill advised was in his remedy to deal with the problem: his proposal to abolish legal aid across the board, save in criminal cases, and to replace it with conditional fee arrangements by 1 April 1998. No doubt it pleased the Treasury to hear those plans; no doubt it pleased the tabloids, and perhaps it pleased the less thoughtful of our Members of Parliament, to hear that at last a Lord Chancellor was taking money away from those whom they saw as members of an overpaid and selfish legal profession, rather than handing them more and more of the taxpayer's hard-earned cash. Nevertheless, the proposal was, and in large part remains, disastrous—not for the Treasury, which can divert any money saved by cutting taxes or increasing other public expenditure; not, perhaps, for the well-off and the comfortable, who have always been able to choose how to spend their money, and to sue or not to sue. For whom, then?
The Government's reforms are badly flawed, even in their greatly revised form following their savaging by far better lawyers than me, far more knowledgeable social scientists than I could ever aspire to be and those much better to articulate the concerns of the many rather than the few. They are politically inept and economically illiterate, and no matter what the Government may intend, they will lead to a denial of access to justice for a huge swathe of the public.
§ Ms Blears
If, as the hon. and learned Gentleman says, the Government's proposals are illiterate and incompetent, will he enlighten the House by telling us what he would 244 propose to ensure that the thousands of people in my constituency who are currently ineligible for legal aid can get advice, assistance and access to justice?
§ Mr. Garnier
If the hon. Lady had listened to what her hon. Friend the Minister said, she would not have been deeply impressed by the way in which the Government are preparing to take legal aid away from the very constituents whom she wants to assist. In order to help those just above the legal aid limit, the Government propose to take legal aid away from those at present below the limit.
If the hon. Lady supports such a policy, no doubt she will troop through the Lobby along with all the other whipped Members of her party this evening. However, I advise her to listen carefully to what I and my hon. Friends will say, and indeed to some of her own hon. Friends, I suspect. She may well be persuaded that what the Government are proposing—[Interruption.] I know that the hon. Member for Slough (Fiona Mactaggart) has never had to bother with legal aid limits, but I believe that the hon. Member for Salford has a deep concern about the people in her constituency who are well below the limits currently applicable to legal aid.
The hon. and learned Member for Medway (Mr. Marshall-Andrews) asked the Minister a moment ago what research the Lord Chancellor's Department had done. I asked that question way back in November 1997, and I did not get much of an answer then. The hon. and learned Gentleman did not get an answer just now. Did the Lord Chancellor's Department consult the Department of Social Security, the Home Office, the Attorney-General's chambers, the Scottish Office, the Welsh Office or the Northern Ireland Office to see what effects the planned reforms would have for their clients, their budgets and their policies?
Did the Lord Chancellor's Department pay any attention to the research already done by others into conditional fee arrangements? Did it even ask its own Back Benchers how they would react to the wholesale demolition of the welfare state, which they fondly believe they have been elected to defend? Did it consult the professions and consumer groups? No, not at all.I intend to consult the profession,said the Lord Chancellor in October 1997. He continued:Change is on the way, and the best thing to do with change is to manage it through consultation and in the spirit of consultation.There has since then been no consultation in any sense that could be recognised by users of ordinary English. The term "a Lord Chancellor's Department consultation exercise" has become an accepted oxymoron. Any changes that have come about, any improvements to the Government's plans between October 1997 and today have not been the result of consultation by Ministers. They have been forced on the Government who, since October 1997, have been in a more or less continual and chaotic retreat in the face of reasoned arguments from the groups and individuals whom I mentioned at the outset.
The Minister cut a pretty lonely figure when he spoke in support of the Government's reforms in November 1997. He was surprised and disappointed, but he should not have been. It is clear that the Government paid little heed to the research carried out by the Policy Studies Institute and published under the title, "The Price of Success—Lawyers, Clients and Conditional Fees" in September 1997.
245 It is equally clear that the Government's approach to the subject since then has been inadequate. We have seen a continuing failure to look for, let alone to look at, the evidence. We have seen a Minister in this House who has become increasingly bored with his job and the difficult issues that it requires him to deal with. We have seen from the outset an incoherent policy ineptly advanced with increasing incoherence and desperation.
It took my party 18 years in government to achieve what the present Government have managed in 18 months—to unite all their enemies against them. In this field of public policy, that alliance has been consolidated by the Government's actions and their high-handedness. It is stronger now than it has ever been.
One has only to look at clause 1 to find out why. Is it not interesting that until reminded of the existence of clause 1, the Minister did not think it was appropriate to concern himself with it? The clause is headed "Principles" and sets out the principles applicable to part I of the Bill. Part I sets up the Legal Services Commission and its two subsidiary bodies, the community legal service and the criminal defence service. Whereas most people who have given the Bill some thought have applauded the introduction of the objectives in clause 1(2) by the combined votes of Cross-Bench and Opposition peers, the Lord Chancellor is so devoid of imagination or generosity or both that he can do no more than sneer. He grandly calls the objectives and the clause no more than a gimmick.
Let us examine for a moment what the Lord Chancellor has dismissed as a gimmick. Clause 1(2) says:The objectives are—
Is any Labour Member prepared to stand up now and defend the Lord Chancellor's description of those objectives as a gimmick? Which of them will be prepared to vote for the deletion of clause 1, which the Minister has promised, and to explain why to the queue outside their local law centre or a citizens advice bureau in their constituency? Which of them will go to the waiting room of an inner-city legal aid solicitor's firm to tell their disabled, elderly or young but injured constituents or their carers that they supported the removal of the clause, and explain why?
- (a) that persons have access to legal services and the machinery of justice which they would otherwise be unable to obtain on account of their means;
- (b) that such access is not to be impaired on account of disability (within the meaning of the Disability Discrimination Act 1995) or the place in England and Wales where any legal services are sought;
- (c) that legal services and facilities of high quality be available such that disputes may be resolved, and proceedings determined, expeditiously, fairly and with the parties placed on an equal footing."
Clause 1 was passed by a majority of 71 in the other place. Is a larger majority of the whipped, the thoughtless and the ambitious prepared to do away with it and all that it represents? Before they do so, perhaps Labour Members should listen to the words of Ashley Holmes of the Consumers Association, Dan Brennan, the chairman of the General Council of the Bar, Vicki Chapman, the policy director of the Legal Action Group and Michael Mathews, the president of the Law Society. On 15 March, they wrote to The Times as follows: 246We are dismayed that the Lord Chancellor's Department has dismissed as a 'gimmick' an important new clause in the Access to Justice Bill, which has its third reading in the House of Lords on Tuesday.The clause was passed in the Lords last month by a majority of 71. It sets the Government the objective of ensuring that legal aid is available to those without means; of protecting individuals against discrimination on the basis of disability or where they live; and ensuring that the legally aided party is placed on an equal footing relative to the other side. Having promised to set its own objectives, the Government has tabled proposals which are plainly inadequate.The Lord Chancellor is planning to have these safeguards struck out in the Commons, despite the fact that the equal treatment of people before the law has been central to the thinking behind our system of legal aid since its inception some fifty years ago.The requirement that legal aid should be subject to available resources does not remove the need to set objectives for spending those resources. If the Lord Chancellor believes that such a clause is 'quite unrealistic', then we must conclude that from now on those on legal aid can be expected to receive a second-class service.Legislators put 'objectives' clauses in Bills for good reasons: to ensure that the executive is bound to deliver in practice what it regularly promises in its political rhetoric.A law without clear objectives may meet the government interest. Only a law with objectives meets the public interest.That argument would be less strong if objectives clauses were foreign to modern legislation, but they are not. They are not even foreign to this Government's legislation. The Food Standards Agency Bill has an objectives clause. The financial services and markets Bill has an objectives clause. The Legal Aid Board—a Government agency—has recognised since 1995 the need to pay heed to the special needs of the disabled under the green form scheme.
Even the new civil procedure rules, which will come into effect on 26 April, have a set of objectives at rule 1, which says:
I do not think that the Government can quarrel with those objectives. I also do not see any grounds for them to criticise the objectives in clause 1.
- "(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
- (2) Dealing with a case justly includes, so far as is practicable—
- (a) ensuring that the parties are on an equal footing;
- (b) saving expense;
- (c) dealing with the case in ways which are proportionate—
- (i) to the amount of money involved;
- (i) to the importance of the case;
- (iii) to the complexity of the issues; and
- (iv) to the financial position of each party;
- (d) ensuring that it is dealt with expeditiously and fairly; and
- (e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases."
Why are the Government not prepared to include in the Bill the desirable, civilised and humane objectives of ensuring access to justice for the poor, the disabled and those living in remote or inner-city areas—access that will allow them equality of arms in their claims against defendant corporations which are backed by insurers, against Government Departments and against public authorities? Placing those people on an equal footing does 247 not mean paying their publicly funded lawyers at the same rate as the defendant's lawyers, but means giving the publicly funded system sufficient money to attract lawyers of quality and experience to do the work.
§ Mr. Sutcliffe
The hon. and learned Gentleman has been speaking for 16 minutes. Rightly, he has said why he opposes the Bill, but surely he also has to say what the Conservative party would do to improve services for people who are not able to get access to justice.
§ Mr. Garnier
I am not sure how much of this or earlier debates the hon. Gentleman has been listening to, but clearly he is volunteering to serve on the Committee that considers the Bill. I hope to see him take a full part in it.
No, because I am still answering the question that was asked by the hon. Member for Bradford, South (Mr. Sutcliffe), if the hon. Gentleman would care to resume his seat.
In 1990 or thereabouts, the previous Government introduced the ability of parties in certain cases to have conditional fee arrangements. As my right hon. and learned Friend the Member for North-East Bedfordshire said in an intervention to the Minister, the Conservative party has no objection to CFAs. What Conservative Members object to is the wholesale removal of legal aid and its replacement by CFAs as though that were the answer to the problem; it is not.
We suggest—and I invite the Minister to agree—that CFAs should be allowed to run alongside the present legal aid arrangements. There is no justice in assisting people just above the legal aid limits by introducing CFAs, but destroying the chances of those below the current legal aid limits, forcing them to—
§ Mr. Gareth Thomas
Does the hon. and learned Gentleman not accept that, in government, his party consistently and progressively tightened eligibility for legal aid, so that fewer and fewer people could receive it? Does he accept that that is no answer to the problem of how one contains public expenditure in the sector? Does he not accept that the Government are at least prepared to grasp the nettle and to match services to actual need in a proper, strategic way?
§ Mr. Garnier
It seems that the hon. Gentleman's suggestion is that because, in his opinion, we got it wrong, his Government can get it wrong as well. That is not an answer to any suggestion that has been made this afternoon.
Statutory objectives can be tested openly, but dispassionately in courts of law, as well as subjected to public opinion and scrutiny in the press. If what the Government claim they require for the public is what they are providing under the Bill, they have nothing to fear 248 from clause 1. It is no gimmick; it is absurd to say so. I am not sure that the Minister convinced himself when he responded to the intervention.
If the wording of the clause that was drafted by Lord Lloyd of Berwick, who is incontrovertibly a world-class lawyer, does not meet the Minister's high standards of clarity and transparency after his somewhat less glittering career at the law, let him say so and come forward with a better idea. The Government's proposals will not increase or improve access to justice; they will inhibit it and for no good reason.
A huge series of questions hangs over the CLS—the community legal service. It is likely to be overly bureaucratic. How much money will be spent on employing civil servants under the control of the Lord Chancellor and how many of them will there be? Money that has been, and should be, devoted to providing access to law, to advice and to representation for those who are unable to pay for it themselves will not be available.
The position is made worse by the fact that CFAs are being foisted on to the public more or less wholesale as the only replacement for legal aid in civil cases. As I have said, we do not object to the introduction of CFAs as long as they are introduced alongside legal aid, and as long as the evidence of their success or failure as funding instruments for civil litigation in a wide range of cases is assessed after proper study.
§ Mr. Dismore
Does the hon. and learned Gentleman agree that CFAs are not the only alternative to legal aid? There are private insurance schemes, trade union schemes and many other ways of funding cases. Turning to his alternative suggestion of CFAs and legal aid working together, how will he get around the problem of adverse selection?
I quite agree with the points that the hon. Gentleman made in the preamble to his question and I look forward to other funding instruments such as trade union support, which have been in existence for some time. The hon. Gentleman will have to educate me about the process of adverse selection. No doubt it is one of the jargon words that spill off his tongue easily, but it is not a concept with which I am familiar.
If it is cherry picking, we all know the answer as that point was addressed by the hon. Member for Great Grimsby (Mr. Mitchell). Perhaps the hon. Member for Hendon (Mr. Dismore) should have listened to his hon. Friend.
Why kill off legal aid for personal injury cases when, according to the hon. Member for Hendon, who is a former personal injury solicitor, that part of the legal aid budget as good as makes a profit for the Treasury? If it does not, the net cost is minuscule compared with the overall legal aid budget of £1.6 billion, to which the Minister averted. Why force people to take up CFAs, which have their place, but are not the answer to every type of litigation, when there is a marked dearth of insurance products to underpin them?
The Minister's answers to my written parliamentary questions about the availability of insurance and to questions from my right hon. and learned Friend the 249 Member for North-East Bedfordshire are woefully lacking in detail. His understanding of the finances of small to medium-sized firms of solicitors is worrying.
In 1997, the Lord Chancellor's Department was talking confidently about the insurance industry stepping into the breach left by the abolition of legal aid.
§ Mr. Dismore
I do not know whether the hon. and learned Gentleman has seen the publication "Litigation Funding". It indicates that nine different insurance schemes are already available for CFAs. I do not know whether he has read it, but it might enlighten him on that point.
The hon. Gentleman must have X-ray eyes as I was about to enlighten the House, if that is the right expression, with some quotations from that magazine.
In 1997, the Lord Chancellor's Department was talking constantly about the insurance industry stepping into the breach. However, I suggest that the Department had not bothered to ask the industry before making such statements. One can hardly fault the industry for being a little less enthusiastic than the Government about the job in question. Realising that they had gone far too far, the Government have now come up with a new ploy which the Minister mentioned.
Apparently, there will now be a new type of insurance product—an after-the-event policy which will solve the problem of clients being unable to afford the premium. I gather that it is the Minister's brainchild. It is called the only-if-you-win policy, and it is quite simple. If the case is won, the premium is paid out of the client's winnings; if the case is lost, the client does not have to pay. So we are to have no win, no fee CFAs for legal fees and no win, no premium insurance to underpin the CFAs.
The Minister says that everything is going well. In a quote that the hon. Member for Hendon was probably not going to use, he said:The message that I am getting from insurers is that things are going well.Perhaps the teacups that he is looking into do not contain tea leaves because Mr. James Innes, the chairman of Abbey Legal Protection, is somewhat surprised by the Minister and asks:Which insurers are giving him this message?He continues:In our view conditional fee insurance has not been proved to be totally workable from the industry's point of view.On the Minister's only-if-you-win ploy, he says:We would not even entertain the idea.Clauses 29 and 30 may have been drafted hopefully, but in ignorance of the real world.
It is not just on that account that the Bill and the Government's wider proposals will impede access to justice. The position of the community legal service is made worse by the fact that the civil side of the publicly funded system will get only what is left over after the criminal defence service has had its fill.
Last month, the Lord Chancellor wrote in The House magazine: 250The establishment of the Community Legal Service lies at the heart of the Bill. The CLS will be a cornerstone in protecting everyone's basic rights. My long-term vision is of a comprehensive network of legal advice points across England and Wales"—as if justice were to be available like cash from the wall of a bank.They will deliver quality legal information and advice to the disadvantaged and socially excluded in areas of law which most directly affect their everyday lives.I suggest that we should be wary of Lord Chancellors who have long-term visions as that suggests that they may not be concentrating fully on what they are doing now.
In Committee in the other place, the Lord Chancellor said that the truth was that the only money that was left for civil legal aid was what was left over after the requirements of criminal legal aid had been met, as those requirements were underpinned, as they should be, by international obligations. Neither I nor, I suspect, any Opposition Member needs an international convention to tell us what is right and what is wrong. That is embedded in the very marrow of our bones.
Of course the criminal defendant whose liberty and reputation are at risk should have unhindered access to advice and representation. If he cannot pay for that himself, he should have public assistance to do so; but he should not have to get advice and representation from a nationalised criminal defence service—from state-employed careerists. That is all the more true when one bears in mind that the prosecutor could now be a civil service colleague of the defence lawyer.
In the other place, on Second Reading, Baroness Kennedy of the Shaws said:The idea of introducing a criminal public defender system into Britain fills me with great alarm.It should fill others with great alarm, too. She knows how such a system works in the United States and is not impressed. No doubt, she said, it would be cost efficient,But surely in justice we are concerned with more than that? The horrifying levels of plea bargaining in the United States will almost certainly visit themselves upon our courts if such a system is introduced.What happens with such a system? The young and the older but less able work within it; the turnover is incredibly high and lawyers quickly become beaten down. Collusion becomes part of the system—collusion between lawyers … prosecution and defence, with the court in order to get through the bulk of cases as quickly as possible."—[Ofcial Report, House of Lords, 14 December 1998; Vol. 595, c. 1157-58.]The noble Baroness also asked a question that, so far, the Government have failed satisfactorily to answer: might not the Lord Chancellor be creating a legacy, namely a system that can only disadvantage the many, particularly the poor?
§ Mr. Mitchell
Does the hon. and learned Gentleman accept that the New Zealand commission on legal services, which examined public defender services in California and Hong Kong, decided that they were the most effective means of providing legal defence for the mass of people in metropolitan societies, where the population was sufficiently concentrated to produce economies of scale and great efficiency?
§ Mr. Garnier
Although that may or may not be true in metropolitan societies—such a system is current in Canada and seems to work reasonably well—the position 251 being advanced by the Government does not meet the concerns of the hon. Gentleman. It certainly does not meet my concerns or those of my hon. Friends.
Our concerns are made worse by schedule 5 and part III—this is, indeed, a Bill of schedules, which take up as much print as the rest of the Bill. Schedule 5 and part III of the Bill would give the Executive control of the courts and undermine the separation of powers under the constitution. It used to be uncontroversial to say that, in a free society, just as the judiciary had to be independent, the Bar and the advocate had to be independent. The Executive must be denied control of the core functions of the legal professions, which service through advocacy the courts that the judiciary operates.
I should like briefly to quote from a speech made last year by Mr. Sydney Kentridge QC, a respected member of the Bars of both England and Wales and South Africa. He said thatduring the years of apartheid in South Africa, there were frequent threats from the Government to place the Bar under the control of a central council with Government-nominated members. This proposal was consistently and successfully resisted by the whole of the Bar, including the many members who normally supported the Government in its policies and its legislation. It was well understood that to remove the control of the profession from the provincial Bar Councils and the General Council of the Bar would have meant the end of the independence of the profession. What was also well understood was that the independence of the Bench was inextricably linked with the independence of the Bar.That advice and the hundreds of years of good sense that those words represent are all to go because this Lord Chancellor, this Minister and this Government equate the undermining of freedom and justice under the rule of law and the constitution with "streamlining".
In the Government's explanatory notes to the Bill, we find the words:This power will enable the Lord Chancellor to change on his own initiative unreasonable or restrictive rules on the part of a professional body.Those words may be soothing and reassuring, but the underlying message is both menacing and distinctly chilling.
With fewer firms providing legal services—estimates suggest that the number of legal aid firms will decrease from more than 11,000 to about 3,000—and with those remaining being concentrated in the larger conurbations remote from rural and provincial England and Wales, firms will be more selective in their choice of client and will not have the resources to assist the needy. Now, the current jargon of "adverse selection" comes rapidly to mind.
§ Mr. John M. Taylor (Solihull)
Would my hon. and learned Friend be kind enough to go back to that passage that he quoted concerning the control of the Bar? Would he remind me whether the word "unreasonable" occurred in that passage? If so, would he then be kind enough to give way to me again?
§ Mr. Garnier
It entirely depends why. I do not want to detain the House, as I have taken up a good deal of time already. However, Mr. Kentridge said that the independence of the judiciary—which is vital in a free society, as was recognised even in apartheid South Africa—depends on the independence of the legal professions that appear as advocates before it. Without an 252 independent advocates' profession—free of the control of the Executive through the office of the Lord Chancellor—freedom under the law in terms of the constitution as we know and understand it is very much imperilled. Does my hon. Friend wish to intervene?
§ Mr. Garnier
I was saying that there will be fewer legal aid firms providing advice, and that they will be concentrated in the conurbations. That is a product of a policy that will prove to be socially divisive. It is a policy for the few, not the many. It is a policy made by new Labour.
It is said that the Lord Chancellor hopes to see his name inscribed on the pediment of a great public building—perhaps a palace of justice—as a fitting memorial to his work. I wish him well in that ambition—as I am sure we all do—but I fear that if the Bill goes through as he would have it, he will not find his name picked out in gold on the Strand, but scratched angrily on the walls of every benefits office in the country.
§ Mr. Denzil Davies (Llanelli)
In a debate on access to justice, I suppose that lawyers are expected to declare an interest. I do so, although I hope that hon. Members—including my hon. Friend the Member for Great Grimsby (Mr. Mitchell), who has now left theChamber—will accept that even barristers and solicitors sometimes can have a concern for the justice system that is not motivated by special pleading.
Whatever views one may have about the various individual measures in the Bill, it must be said realistically that the time had come for a fundamental review of the operation of the justice system and, in particular, the legal aid system. The present legal aid system goes back to an Act of 1949: 50 years ago. It would be trite—and wasteful of the time of the House—to say that society has changed beyond recognition since then. Those of us who are lawyers sometimes ignore the effect of economic forces on legal jurisprudence and the administration of justice.
Enormous economic changes, especially in the 1980s and 1990s, have put pressure on the legal system, practitioners and Governments that could not have been envisaged way back in 1949. Governments, society and commerce are now structured to serve the citizen and the consumer, and their ever-burgeoning rights. Governments encourage citizens to take up their rights and, when rights are taken up—and sometimes denied—they can be enforced only by seeking redress through the courts. That costs money.
The growth of personal injury actions, and actions for professional and medical negligence, reflects what has been happening, especially in the late 1970s, 1980s and 1990s. Since I started at the Bar in the 1960s, there has been an amazing growth in the judicial review system which enables people to challenge the decisions made by public bodies.
One of the Labour Government's first acts was to enshrine the European convention on human rights into the law of the United Kingdom, and that will inevitably lead to more court action, more citizens seeking to enforce 253 more rights, and more demands on public funds. I missed the statement, but I am told that my right hon. Friend the Home Secretary postponed the operation of that legislation for a short time. I think that he said that the judges need to be educated. In some ways, human rights legislation bridges the legal and the political. Perhaps the judges need to be put on message. I do not know.
I believe that my right hon. Friend said that we must be careful because sharp lawyers could pull the wool over the eyes of the judges who have to administer the convention. Perhaps an underlying reason for the postponement is the cost that is bound to accrue to the legal aid system.
The hon. Member for Beaconsfield (Mr. Grieve) mentioned the choice of rights that Governments make in the financing of court action. Fashionable choices benefit and unfashionable ones recede. Perhaps personal injury and professional negligence cases are not so fashionable any more, as other rights become more politically correct and have to be financed, partly by Government.
There are economic pressures on the traditional family. There is pressure on both parents of small children to go out to work and there is no doubt that that has led to an increase in the legal aid budget for family litigation and matrimonial cases. The Library's notes on the Bill point out that cases involving children's rights now absorb about a quarter of the net spending on civil legal aid. The cost of funding welfare, immigration and employment rights cases in the higher courts also creates pressures.
I disagree with some of what my hon. Friend the Minister said, but I agree that, frankly, something had to be done. Whatever view one takes on conditional fees and on contracting out and franchising, the present system could not have been allowed to continue. Whatever system is put in place will not be perfect and there will always be pluses and minuses.
Having paid a back-handed compliment to my hon. Friend the Minister, perhaps I can devote the rest of my speech to an expression of my profound reservation about one aspect of the Bill: the proposals on the criminal justice system. Clauses 13 and 14 contain proposals to set up what is in effect a state defence unit, a service to mirror the Crown Prosecution Service. I do not know why any Government would want to do that, but apparently it will be the Tweedledum to the Tweedledee of the CPS, the state prosecution service that, up to now, has not covered itself in glory.
The Bill originally contained powers to enable the Government to employ state advocates to defend those accused of crimes, as well as a power to use a franchise to contract independent advocates. As my hon. Friend said, the House of Lords was not too happy with that suggestion in respect of state employees. The Lord Chancellor tried to convince the other place that everything would be all right; there would be a mix of independent advocates and state-employed advocates defending those accused of crime. Quite sensibly, Members of the other place were not impressed by the Lord Chancellor's arguments, or assured by his assurances. As I understand it, they removed from the Bill the power to enable state employees to be used as advocates in the new criminal defence service. I believe that the House of Lords was right to do that.
254 I had hoped that my hon. Friend the Minister would say, "All right then, we will call it a day", but not at all. As he has said, the Government are determined to drive this measure through and put that power back into the legislation. While preparing my speech for the debate, I came across a document from the Home Office that I received recently; it refers to a business plan for the criminal justice system. In paragraph 5.3.19, it reiterates the plan for a state defence system with state defence advocates. The document is most interesting.
§ Dr. Lynda Clark (Edinburgh, Pentlands)
Would my right hon. Friend have the same objection if the scheme were entirely voluntary? In these days of consumer choice, if defendants wished to use a state defence system, what would be my right hon. Friend's objection to that?
§ Mr. Davies
I should still object to a state defence system. It is preferable for advocates to be independent of the state. That may be an old-fashioned view—I accept that entirely—but I believe that, within the criminal justice system, it is certainly better that advocates who defend people and their liberty should be independent of the state.
I cannot resist turning back to the document. It is described as an example of joined-up Government. Indeed, we have a joined-up photograph—the first that I have seen. The photograph is of—if I may borrow my right hon. Friend the Home Secretary's phrase—three sharp lawyers: the Lord Chancellor, the Home Secretary and the Attorney-General. The Home Secretary and the Lord Chancellor are elbow to elbow and shoulder to shoulder, but I notice that my right hon. and learned, and very good, Friend the Attorney-General is elbow to elbow with them, but not shoulder to shoulder. I do not know whether that makes him a sharper Welsh lawyer than the other two—my hon. Friend the Minister may agree, or he may hedge his bets. Clearly, the Government are determined that this joined-up proposal will provide us with a state defence system.
My hon. Friend will say—as he and the Lord Chancellor have said—that there will be a mix; there will be some state employees, and other employees will be under contract. However, the whole history of Government, especially Governments in these perhaps more authoritarian times, shows that Governments—of whatever persuasion—will try to extend their control. If that power were reintroduced, we would find that, gradually, there were more state employees and fewer independent advocates operating in the criminal justice system. The state employees will have mixed duties; they will have a duty—as they should—to their employer. No doubt, they will try to balance that duty with their duty to the criminally accused. They will be subjected to all those instruments of bureaucratic control that we see these days: the codes of conduct; the rules of best practice; the guidelines that are not binding but are binding; the pressure to settle cases; and of course the ubiquitous and inevitable cash limits. That is how it will be in the state defence system.
The criminal justice system is a creature of the state. By its nature, it must be so. However, I believe in two old-fashioned concepts—checks and balances—of which we hear little these days. The presence of independent advocates—solicitors or banisters—whose primary duty is to the accused and the court, would be the best check and balance in the criminal justice system.
255 Like most of us, I have never been accused of a criminal offence. People who are accused are very lonely. Once arrested, a person goes to a state police station where he is surrounded by state police. Under the present system, an independent duty solicitor will try to assist the accused. When he is charged, another independent solicitor may prepare his defence.
Under the proposed system, more and more advocates will become state advocates, and the duty solicitor will be a state solicitor, as will the solicitor preparing the defence. If a case goes to a magistrates court at present, there is a state prosecutor, but the defence advocate is independent. When the system is changed, the defence advocate will be a state advocate. That is not sensible.
At Crown courts, at present, independent advocates prosecute. When rights of audience are extended, most, if not all, prosecutors will be state prosecutors. If we move gradually to a state defence system, most, if not all, those who defend people accused of crime will also be employed by the state. The state will have complete control of the criminal justice system.
Then there are the judges. They are state employees, even if they are high-class employees. However, they are independent, partly because they are drawn from the ranks of independent criminal advocates. As the state encroaches gradually into advocacy in criminal cases, where will the judges come from? They will be drawn from advocates who have prosecuted or defended for the state, or done both. Perhaps 90 or 95 per cent. of judges will have done nothing all their lives but prosecute or defend for the state. That is not proper in what, perhaps optimistically, I hope will remain a liberal democracy.
What about books? Most books on procedure and evidence What about books? Most books on procedure and evidence—more important in criminal cases than in civil—are written, as they must be, by practitioners. In future, new editions will be written by state advocates, be they prosecutors, defenders or judges. The whole criminal justice system will be tied to the state with none of the checks and balances that I think desirable in a western liberal democratic society.
§ Mr. Martin Linton (Battersea)
Like me, my right hon. Friend is paid a monthly salary through the state. Does that make him any less independent as a Member of Parliament?
§ Mr. Davies
No, it does not, but, as a Member of Parliament, I am not concerned with the liberty of others every day in the criminal courts. It is extremely important that the duty should be a duty to the client. In any case, as a Member of Parliament, I am not employed by the state, I hold an office—but we shall leave that aside. I am old fashioned enough to believe that an employee has a duty to his employer. An advocate with a duty to his employer will also have a duty, rightly, to his client, as well as a duty to the court. I do not believe that it is always possible to balance all those duties.
I see no need for the new system. My right hon. and hon. Friends have introduced what is in the main a good Bill, and I do not object to it in general, but I do not see why they have to try to create a state defence system staffed mainly by state employees.
§ Dr. Lynda Clark
Is my right hon. Friend aware that the conflict that he foresees between contractual duties 256 and the duty to the court and the client are anticipated in the Bill, which makes it plain that the overriding duty of any practitioner is to the interests of justice, not to the contractual duties that he may have as an emplopyee?
§ Mr. Davies
Of course, but life is not quite like that. A young person working in a state defence service will have conflicts between duty to the employers, duty to the client and duty to the court. I do not understand why it is necessary to create those conflicts, and I cannot understand why my hon. and learned Friend seems to be supporting the idea.
There is no need for such a system. We could easily have a criminal defence system without making advocates employees of the court. I repeat my hope that my right hon. and hon. Friends will change their minds. The Bill is not a bad Bill; it applies to a difficult situation and must have been difficult to draft. None the less, I hope that my right hon. and hon. Friends will think again and will not reincorporate into the Bill the power that the House of Lords threw out.
§ Mr. Nick Hawkins (Surrey Heath)
I begin by referring to the concerns expressed by one of my constituents, a lady solicitor specialising in personal injury work, because what she says encapsulates several concerns that many of us—not only Conservative Members but, as we shall no doubt hear later, Members from other parties, too—have about the Government's proposals.
My constituent, Carole Green, wrote as follows:I am writing with regards to the Lord Chancellor's proposal to eliminate legal aid for personal injury matters … As a … practitioner with a client base comprising many personal injury clients I am writing to express my concern at the government's proposals… I have dealt with numerous clients over the years who, but for the provision of legal aid, would not have been able to have taken their claim forward. The vast majority of my personal injury clients have been successful in their cases, approximately 90 per cent., and the cost to the state at the end of the day in those successful cases was nil.I believe that legal aid provides a public service for personal injury victims at a remarkably low cost. I believe it is a good use of public money and is good value for money. Further, it plays an important part in holding wrongdoers liable in damages and as a consequence․this important point was not really touched upon even in the extensive debates in another place․improves health and safety generally both in industry and elsewhere.I would like to stress that I am not writing because I am concerned that the removal of legal aid will have any effect on my practice.Carole Green can be acquitted of any argument in her own interest, becauseless than 50 per cent. of [her] clients on all matters have been legally aidable in the past and I do not expect that level of private work to alter. I write solely because I am concerned that if legal aid for personal injury matters is removed many victims will have suffered an injustice in respect of which they will not be able to gain compensation.I sincerely hope you will be able to take my views into account in the forthcoming debate.I am delighted to have been able to put those views before the House
257 I should declare an interest, not present but past, as a member of the Bar who practised for seven years from chambers in the midlands, and worked on many personal injury cases. Also, although this may be more relevant to my later remarks, I should mention that I am a former chairman of the corporate Bar—the Bar Association for Commerce, Finance and Industry, which represents barristers employed by companies—whose views I support.
I shall now draw attention to what was said in another place not by Conservative peers but by peers on the Government side. My hon. and learned Friend the Member for Harborough (Mr. Gamier) has already mentioned the concerns expressed by Baroness Kennedy of the Shaws. Throughout my career as a barrister, Helena Kennedy QC, as she then was, was regarded as a pre-eminent radical barrister. Indeed, she was regarded almost as a talisman by many Labour Members, and was quoted extensively and widely supported. Yet her criticisms of the Bill—especially, as my hon. and learned Friend the Member for Harborough said, of the proposals for a public defender system—are savage.
Baroness Kennedy said:I also have queries about some aspects of the block contracting system… How do you ensure that specialists who are suited to the case are brought in? Will the block contracting system relate only to run-of-the-mill cases? What happens with the unusual or specialist case? To what extent are weshe means her own side, the Government—sacrificing choice to efficiency in terms of cost?That last question is the most important. I intervened in the Minister's opening speech to ask whether the Bill was based on an attempt to save the Chancellor of the Exchequer money rather than, as is claimed, an attempt to increase access to justice. I asked the question because the Government are again pretending to do one thing while actually doing another.
My hon. and learned Friend the Member for Harborough is right to say that the Bill is an example of the Government's Orwellian Newspeak; a word means what they, especially the Lord Chancellor and his Ministers in this place, want it to mean. The Bill is not about access to justice but about saving money for the Chancellor of the Exchequer.
§ Mr. Dismore
Should not the response to the criticism of block contracts be to consider the trade union legal schemes, which have operated a block contracting system for decades? Through that process, they have achieved cost-effective and high-quality legal services, which are provided by specialist practitioners. I see no reason why the new scheme should not operate in a similar way.
§ Mr. Hawkins
The hon. Gentleman has extensive experience of working in that area, but I think that he would recognise that Baroness Kennedy suggested in the debate on the Bill in another place that the safeguards to ensure that the right things happen were not built in. The hon. Gentleman takes his own Government on trust, but the House has a duty to scrutinise what the Government propose. I say that there are not sufficient safeguards in the Bill to ensure that what the hon. Gentleman wants will happen.
258 I have no doubt that the trade union schemes have detailed rules and safeguards, but there are none on the face of the Bill. There should be. That is why Baroness Kennedy and I are concerned. Let me remind the hon. Gentleman, and Ministers, of some of the other things that Baroness Kennedy said. I agree with her criticisms. She says that she learned in her early days at the Bar—as I, like all other young barristers, did—that clerks in chambers had a clear idea of the importance of finding the right barrister for a particular case.
Baroness Kennedy rightly asked:Will there be space in the block contracting system for the securing of the right barrister for a particular case? Will it be possible for any solicitor up and down the country to pursue the well known advocate who is a leader in the field of prisoner rights if he is not on the solicitor's normal block contract list of counsel? If the solicitor has a case involving mental health"—I dealt with many mental health cases in my practice at the Bar—will he be able to secure the specialist advocate who deals with mental health cases and has taken many of them to the Court of Appeal and the House of Lords?Will the solicitor be able to secure the counsel who have been at the heart of so many of the miscarriage of justice trials? Will the solicitor be able to seek out banisters who have specialist knowledge and understanding of, for example. domestic violence?That is again a field in which I conducted many cases. Those are important points, and I am no more reassured than she was by the Bill.
Baroness Kennedy's savage criticism of the criminal public defender system should cause Labour Members great concern. She said:I know that our Lord Chancellor is committed to human rights… But might he also be creating another legacy— introduction of a system which can only disadvantage the many, particularly the poor?"—[Official Report, House of Lords, December 1998; Vol. 595, c. 1157–58.It is of concern that the Lord Chancellor has argued in respect of the Bill the exact opposite of what he argued in opposition. His response when he was taxed with what he had said in 1989 in the Lords debate was interesting. It struck me as a paradigm of the reason why he is regarded by many, even on his own side politically, as arrogant and dismissive of challenges from whatever political direction. He said:I am minded to invoke what I believe a Victorian judge said when taxed with a previous decision he had made from which he had intellectually parted company in his own mind when sitting in an appellate court. He said something along the lines, "That is how it appeared to me then, but it is not how it appears to me now". If great judges can get away with that, mere Lord Chancellors can as well."—[Official Report, House of Lords, 16 February 1999; Vol. 597, c. 617.]We are not taken in by his false modesty. It is yet another example of Newspeak.
The powers that the Bill introduces for the Lord Chancellor were rightly criticised by my hon. and learned Friend the Member for Harborough. They also received detailed scrutiny in the other place. The General Council of the Bar, on whose inner cabinet, the general management committee, I had the honour to serve from 1992 and 1995, points out that a report by the House of Lords Select Committee on Delegated Powers and Deregulation sharply criticised the wide-ranging powers that the Bill would hand to the Lord Chancellor, who would be unchecked by parliamentary scrutiny. That took up much time in another place and no doubt will here, 259 perhaps in Committee. Although I do not expect to serve on the Committee because of other commitments, it is important on Second Reading to consider carefully whether the Lord Chancellor, who has often been compared to Cardinal Wolsey, in this Bill combines his usual Wolseyish attitude with that of Wolsey's boss through the so-called Henry VIII clauses that give him such untrammelled powers.
The Bar Council adds that the powers in the Bill as it stood when originally introduced included the constitutionally unprecedented power for the Lord Chancellor unilaterally to change the rules of independent legal professions. As noted earlier, that power was repeatedly and unsuccessfully sought by the pre-democracy apartheid Governments in South Africa. The Lord Chancellor has since undertaken to limit such interventions to rules that he considers unduly restrict rights of audience and to litigate. The Bar Council would like the powers to be subject to approval by a majority of the senior judges. That is an important constitutional safeguard in terms of the doctrine of the separation of powers.
The Law Society has no doubt sent its helpful briefing notes to all hon. Members. It is concerned about the Bill's equal opportunities implications. It would be helpful if the Government, on more mature consideration, were prepared to allow legal aid to continue for personal injury cases involving the elderly, those who suffer from mental incapacity or illness, and, most importantly, children. I sincerely urge the Government to consider those special needs.
I am concerned by the danger that the Government's introduction of the block contract system will make it much more difficult for people in rural areas to obtain a proper range of independent legal advice. Legal fees insurance, whose use the Government are keen to expand, will be expensive for all but the clearest cases. The uplift on no win, no fee will increase costs. While I support people taking out legal expenses insurance, it is wrong to make the entire system dependent on its existence, as the Government seek in these proposals. Those are serious concerns which have been commented on at length in another place and by many independent commentators.
Conservative peers have rightly described the Government's proposals as nationalising the criminal justice system. In criminal cases, it is important to maintain the suspect's or the criminal defendant's confidence in the system and ensure his or her effective participation in the process. That is what the Government said that they wanted in the White Paper "Modernising Justice". I am not sure that they have achieved that.
My constitutional concerns are among the most serious matters that the House must consider. I hope that the Government, if not today, then in Committee, will consider further questions, particularly in relation to ethnic minorities and cultural differences. How will the Bill and the Government's reformed legal system ensure that those issues are properly addressed? How will the duty of advocates to a court, particularly under a public defender system, to act in the interests of justice be measured and monitored in relation to clause 36? How will the impartiality of the public defender system be maintained? How will lawyers' independence be measured? What monitoring procedures will be put in place? What motivation will there be for lawyers to 260 achieve the most appropriate results for their clients? What steps will be taken to preserve public confidence in what is effectively a nationalised system?
On the budgetary implications, have the transitional and start-up costs been evaluated? I fear that the new bureaucracy shows some of the signs of the problems that arose from the over-bureaucratic nature of the Child Support Agency. Labour Members would be worried if they thought that they were creating a new Child Support Agency through a nationalised legal service. Have the costs of accommodation for the criminal defence service, presently carried out by private firms of solicitors, been evaluated? Have the administrative running costs, such as offices, salaries and pensions, been estimated? Have the training costs of the staff to run the new agencies been considered? Where is the pool of appropriately qualified people to staff the new agencies? Have the administrative costs of graduated fee schemes been compared with those of the proposals? I hope that the Government will answer all those serious questions. I am not convinced that the Government have got the proposals right.
§ Mr. Robert Marshall-Andrews (Medway)
I begin by declaring an interest as a practising member of the Bar. I declare another interest, which is that 25 years ago I was one of the team working in the Islington legal advice centre, which was one of the first to be set up. That part of London was at the time a deprived and destitute area and nothing like the new Labour paradise that it has since become. We set up the centre in a church hall. We had our 25th anniversary last year and it was attended by many elderly people, some of whom were unrecognisable from 25 years before. We were all proud to have been part of that centre, and the opening remarks by my hon. Friend the Minister could not have been more welcome in those circumstances. I congratulate him, the Lord Chancellor and the Government on setting up the community legal service to give some coherence and direction to the patchwork of provision, especially in welfare and housing law. I agree that it is high time that a larger proportion of our legal aid budget was spent on those worthy aims.
I also congratulate the Government on that part of the Bill that will extend on a statutory basis the right of audience of solicitors to the higher courts. Many members of my profession will not thank me for saying that, but I believe in the virtues of a split profession and they are not assisted by restrictive practices. The provision will not make that much difference. Solicitors are welcome to taste the delights of myopic, querulous and bad-tempered judges if they wish to do so, and I am confident that few of them will. I have never perceived any reason for such a restrictive practice and I welcome the change.
I further congratulate the Government on the provisions in the Bill that will ensure that those who apply for silk and are unsuccessful will bear the costs of that unsuccessful application. I give that my full-blooded and wholehearted support, realising as I do that it has no retrospective effect. That brings me to the end of that embarrassing eulogy on the Bill, because it also contains two aspects that are dangerous. One of them is profoundly dangerous for civil liberties, for all the reasons so eloquently articulated by my right hon. Friend the Member for Llanelli (Mr. Davies) in his long and valid analysis of the setting up of the criminal defence service.
261 I take the point that the Bill includes a provision to ensure the ability of those charged with criminal offences to choose their advocate from the criminal defence service or from the independent part of the legal profession, but the Bill does not set out in stone or in any other way the relative quantum that is to be allocated between the independent profession and the criminal defence service, which will be entirely in the employ of the state. Of course, it is the avowed intention of this Government that the criminal defence service employed by Government will take a small part of the quantum of funds that are available and thus genuine choice will remain. I accept the Lord Chancellor's assurance on that point, but we cannot question him about it in this Chamber. That is a pity and an anachronism, but I accept my hon. Friend the Minister's assertions on the point.
The present Lord Chancellor is, of course, a luminous lawyer and a beautiful human being. He is, no doubt, untouched by the trappings or temptations of power. However, his predecessors in the past 1,200 years have not all been so luminous and there is no guarantee that his successors in the coming millennia will be any better or worse. In those circumstances, handing to an unelected Government appointee the power to control those who defend against the state is dangerous and unwelcome. I know that my hon. Friend the Minister takes that point seriously and I hope that he will consider it further in Committee. That provision concerns me, but in itself would not cause me to take the grave and serious step of not supporting the Government over the Bill.
However, the main issue in the Bill is of such gravity and seriousness that I say, with a heavy heart, that I will be unable to support the Government on Second Reading. When the Bill returns to this House after its Committee stage, it may be in a different form and worthy of support, but at the moment there is a profound lacuna and danger central to the Bill and it must be addressed. It is the removal of legal aid from those who wish to bring meritorious claims for personal injury.
Contrary to the imputations that my hon. Friend the Minister may have made in his remarks, my reservations are not those of a reactionary lawyer. As has been pointed out already, those reservations are shared by the Consumers Association, the Law Centres Federation, the Advice Services Alliance, the Federation of Independent Advice Centres, the Child Poverty Action Group, the National Consumer Council, Liberty, Justice, Shelter and the Legal Action Group. To that list it is now possible to add the Association of Personal Injury Lawyers, a robust body which was the strong proponent of conditional fee agreements. It has recently stated that the provisions in the Bill are a mean trick, because it was never intended that conditional fee agreements should replace legal aid.
I was astonished that the provision was included in the Bill. I perceive no logical, legal, constitutional or social reason why it should be there. The first question is what is wrong with the present system, which provides legal aid for the poor, the disabled and children who require it to pursue damages for personal injury. The answer is dissyllabic: nothing. The system is, by a street, the most efficient part of our welfare and social service provision. Some 75,000 cases per annum are granted legal aid for the pursuance of personal injury cases at a gross cost to the fund of —226 million. Of that, 84 per cent. is clawed 262 back because of the success rate of litigants. Some 91 per cent. of cases are successful. Any imputation against legal aid lawyers, who take those cases at an average net cost of £559, that they are overcharging—or not carrying out their public duties to the standard that we are entitled to expect£simply does not pass muster. I have practised a little more than my hon. Friend the Minister and I know that if I had anywhere near a 91 per cent. success rate, I would consider myself to be infinitely more successful than I am or have ever been.
§ Mr. Michael Jabez Foster (Hastings and Rye)
Such a high success rate implies that legal aid sponsors well-founded, reasonable cases. Can my hon. and learned Friend give a single example of anyone who has been ineligible for legal aid and has failed to arrange a conditional fee agreement? I know of no such person.
§ Mr. Marshall-Andrews
The question is well put. Since the 1995 provisions, which enabled conditional fee agreements to be entered into in such instances, cases that were funded by legal aid have been specifically excluded. As yet, there has been no research to determine what the effect will be when 75,000 cases come on to the market. None of my constituents have been affected, but my clients and those of my chambers who were just above the legal aid limit have been ineligible for legal aid. They were not able to fund their cases largely because of the disabilities that they sustained as a result of the accident or misadventure for which they sought to sue.
Like most lawyers, I do not necessarily like contingency or conditional fees. However, I have always believed that it was absurd to prevent my colleagues and me from saying, "I will take your case for nothing or for much less than I would normally charge in the knowledge that, if we are successful, I will get my normal fee. If we are unsuccessful, I will take less." I do not believe there is anything inherently wrong with that system—although I do not like it.
§ Dr. Lynda Clark
It is important to recognise that speculative actions have always been possible in Scotland. Advocates in Scotland have always been able to do what my hon. and learned Friend describes. The Scottish Bar has assisted people by taking cases for nothing and, if they are successful, the fees are recovered from the other side. However, it is important to recognise that there is no uplift on the basis of success—which is another issue altogether.
§ Mr. Marshall-Andrews
That is an example of the great wisdom of the Scottish legal system. I am grateful to my hon. and learned Friend for pointing out an essential failing in the Bill: the uplift concept. She has taken the words out of my mouth. In the circumstances about which I was postulating, I would not have contemplated saying that I would charge an extra fee. I would have simply said, "I will share your risk on the basis of what I would normally, honourably and properly charge."
§ Mr. John M. Taylor
I am grateful to the hon. and learned Gentleman for giving way. I defer to and respect his knowledge about such matters. When he has taken conditional fee cases, has he had any difficulty defining a win or, to use his words, a success? Does he agree that 263 an independent third-party lawyer should sometimes give secondary advice to the client in achieving a definition of a win?
§ Mr. Marshall-Andrews
I do not wish to get involved in the minutiae of these matters, but I accept that that is an immediate problem. It is difficult to determine what is a success and the point at which one should demand a success fee. I have never taken a case on the basis of a success fee. Before 1995, we were not allowed to make conditional fee agreements. The problem to which the hon. Gentleman refers is just one reason why I would never take a success fee case.
§ Mr. Dismore
To answer the question raised by the hon. Member for Solihull (Mr. Taylor), the definition of a success is always incorporated in the terms of the agreement, so that is not a problem. I have often felt embarrassed when clients who are funded by legal aid have had to pay, month after month, substantial contributions towards the legal aid agreement. The beauty of conditional fees is that they do not cost the client a penny—and the Bill will improve the situation further. Does my hon. and learned Friend agree that such clients are better off under conditional fee agreements than under legal aid? Bearing in mind the substantial success rate of cases funded by legal aid, most people would qualify for conditional fees. I have often advised clients not to opt for legal aid for that reason.
§ Mr. Marshall-Andrews
I shall deal with that interesting and lengthy intervention as follows. My hon. Friend will know that more than 80 per cent. of legal aid cases are accepted on a non-contributory basis, so no contribution is paid in more than 80 per cent. of cases. The recipients of legal aid are employed in only 30 per cent. of those cases: the vast majority of recipients are pensioners who are reliant on benefit or children. That answers my hon. Friend's first point, which is not a bad one. I accept that conditional fee agreements have advantages at the margins.
However, my hon. Friend's argument does not pertain to the majority of cases—the 50,000 or 60,000 cases a year as opposed to the 20,000 cases that are funded under conditional fee agreements. My hon. Friend makes an interesting intervention, but it does not deal with the main thrust of my argument. As I understand it, he does not advocate the ending of legal aid—although he is an active proponent of conditional fee agreements. I respect him for that and I am not antagonistic towards him. In order to ascertain who supports this noble system, it is necessary to refer to a much quoted passage from 1996, which states:Supporters of legal aid must never cease to emphasise that it is a highly successful public social service. In civil cases which reached judgements in 1995/96, there were judgements in favour of the assisted person in 81 per cent. of cases. The proportion of cases where there was either a settlement or judgement in favour was 91 per cent. PI litigation is a category conspicuously successful. Obviously the greater the success rate the closer the legal aid system can approach self-funding. These success figures tell against any argument that legal aid is generally granted too readily, but it must be remembered that there are a small number of very high cost cases which account for a large proportion of expenditure.264 That ringing endorsement of this noble system was delivered by the Lord Chancellor in 1996 before he achieved his high office.
§ Mr. Hawkins
I am grateful to the hon. and learned Gentleman for endorsing my earlier point about the Lord Chancellor's rather sudden change of view upon his appointment. Will the hon. and learned Gentleman go further—I am delighted to have received so much support for my arguments—and agree that it is important to have available in the Library the latest figures for the expenditure of legal aid? The Minister responded to my earlier intervention by saying that the figures that I had cited—the most recent figures available publicly—were not up to date. He said that the Government had more up-to-date figures. In addition to our agreeing about the extension of rights of audience and concerns about personal injury, does the hon. and learned Gentleman accept that the Government have a duty to share up-to-date legal aid figures with the rest of us? Such information should not be retained to inform just the Minister's responses.
§ Mr. Marshall-Andrews
I agree with the hon. Member for Surrey Heath (Mr. Hawkins). However, it is not just a question of sharing the figures. Simply saying that the Government believe the figure is 7 per cent., does not amount to revealing the source of their figures. The hon. Gentleman and I have cited figures from the Legal Aid Board. Our figures are nearly identical—I am not sure who is correct—and they point to a 1.5 per cent. increase in legal aid expenditure compared with a 3.3 per cent. inflation rate. They reveal a significant increase in the assistance provided under legal aid in the past two years. Any suggestion that the legal aid fund is not under control is not borne out by Legal Aid Board figures. If there are other figures or other research, I would like to see them.
The Minister nods, but he will not like my next point. He cited figures that showed a vast increase in legal aid expenditure between 1991 and 1996, when it was brought under control. That increase was due largely to the recession into which we were plunged by the Conservative Government as people who were affected by that recession made demands on the legal aid fund. There were several other factors, such as the setting up of the Serious Fraud Office, which vastly increased costs in criminal legal aid. The statistics do not provide any succinct or reasonable basis for removing legal aid from the highly meritorious cases to which I have referred.
§ Mr. Linton
Will my hon. and learned Friend explain why, if legal aid cases have a 91 per cent. success rate, it would be an imposition to expect a case to have a 75 per cent. success rate before it was given a conditional fee agreement?
§ Mr. Marshall-Andrews
A 75 per cent. success rate does not apply to a conditional fee agreement, which can be taken out in respect of any case by any lawyer who is prepared to do so on the basis of an uplift. One of the problems is that the client has to rely entirely on the lawyer to tell him what kind of case he has. The lawyer may say that he wants a 100 per cent. uplift. There are well-known anecdotal cases of lawyers operating on a 265 blanket 70 per cent. uplift on the basis that every case is a bit dodgy so one may as well immediately equalise the risk.
In response to my hon. Friend's question, one may ask the rhetorical question: why, if legal aid cases enjoy such a high success rate, shou[...]d they not be effectively privatised? That is what the measure would do, by pushing the burden of the welfare state on to solicitors and insurance companies. The answer is simple. First, as I have just said, we would be reliant on an imperfect system—the advice that is given within a contingency fee system.
The second point—this is the answer to the question about reverse selection asked by my hon. Friend the Member for Hendon (Mr. Dismore)—relates to the funding of disbursements. When people with no money ask a solicitor to take a case, it is taken on a no win, no fee basis, and the disbursements for employing experts and counsel, if that is necessary, have to be borne by the solicitor. People who are injured or disabled will, without a shadow of a doubt, have to trail the coat of their respective damages from solicitor to solicitor until they find one with the right portfolio of risk. If they are lucky enough to find one, they must hope that he is a good one.
I say to my hon. Friend the Member for Battersea (Mr. Linton) that if one took that service and superimposed it on the national health service, with the concept that those who are injured and disabled and require the services of the state have to go from doctor to doctor until they find someone who is commercially able to take their case, there would rightly be outrage. The circumstances that I have described are in no way different.
§ Mr. Mullin
Returning to uplift, my hon. and learned Friend said that there are lawyers taking a 100 per cent. uplift. No doubt there are such lawyers, but he has read—indeed, he drew it to my attention—the Policy Studies Institute document, "The Price of Success", which has analysed conditional fee cases. The document says:The average uplift is 43 per cent. The Law Society's voluntary cap which prevents more than 25 per cent. of damages being eaten up by fees has become virtually standard.
§ Mr. Marshall-Andrews
My hon. Friend is right—a 25 per cent. voluntary cap on fees is imposed by the Law Society and that has undoubtedly been working. At the time of the PSI report, the 43 per cent. uplift was also working. If my hon. Friend reads on, he will see that report clearly says that, because of the extremely limited number of cases that the PSI was able to consider, it is far too early to draw any conclusions about the validity of conditional fee agreements. I have repeatedly drawn to the attention of my hon. Friends the fact that there is no research. The emphatic conclusion of the PSI report, which 1 drew to my hon. Friend's attention, was that no policy could be based on its findings.
The Government do not have the necessary research on how the 20,000 cases based on conditional fee agreements have operated. Nor do they have any significant research on whether the insurance industry will flood in to pick up cases that were part of the welfare state, as the Government hope that insurers, as well as solicitors, will 266 do. All the evidence, including that from insurers themselves, suggests that they will not flood in to take on those cases.
An article in The Lawyer of 1 February was headlined, "Insurers to cherry-pick low risk legal aid cases", and said thatlegal insurers predict a slimming down of the number of cases receiving funding, rather than greater access to justice.'There's no question about it. The insurers will be more selective' says Christine Malkin, director of Amicus Legal.Anthony Mowatt of Keystone Legal Benefits, meanwhile, likens potential cases to a big pie, part of which insurers will find unappetising. 'One clump will be chucked in the bin and we will all be fighting over what's left," he says.As if that was not ringing enough, the article continues:Derri-Ann Clark of Saturn Professional Risks is more concise: 'It's got to cut down access to justice for a number of people. There are occasions when you'd like to help someone but you can't take the risk.'That is the message which is coming loud and clear from the insurance industry. If the Bill is passed, each year we shall subject 75,000 cases of the poorest and most disabled people to the circumstances that have been projected.
All I ask of the Government is that they accept an extremely limited amendment to the Bill to retain legal aid for personal injuries cases involving children, people who are reliant on benefits or pensions and those who are disabled within the definition of the Disability Discrimination Act 1995. That is not a great deal to ask. It would safeguard the poorest in society. If, in five years, it appeared that the system of conditional fees was otherwise working like a dream, the Government could return to Parliament and say that they were justified in taking that risk to give the poorest in society a break. At the moment, however, I have to say that many hon. Members did not come to the House to remove that protection of the welfare state from the poorest people in it.
There will be beneficiaries of the Bill. I repeat that I hold no brief for lawyers and I do not make my remarks on the basis that the measure will impoverish lawyers—quite the reverse. The Government's proposals will enrich many lawyers who are awaiting conditional fee agreements. There will be two types: one will be absolutely admirable and the other will be absolutely not admirable. The first type includes large firms, which are represented in the House. They will, of course, take on clients because they have an enormous portfolio of cases and have the ability to churn out cases and take on the portfolio of risk. They will accept a limited number of cases from the myriad legal aid solicitors who are at present responsible for operating, on the level of the high street, what I hope I have demonstrated is an excellent system.
The other lawyers who will, unhappily, benefit from the Bill are the charlatans. They will be prepared to accept, on conditional fee agreements, the cases of people who would otherwise have got legal aid. They will churn out those cases, settle them or push them when they should not be pushed, depending on how much it suits their commercial need. I do not know a single concerned lawyer in personal injury litigation, working for a large firm, who does not perceive those risks to be real and completely unacceptable.
267 My hon. Friend the Minister has repeatedly said that he receives letters. I have received many letters from some of the best and most radical firms of solicitors who deal with those cases, as well as those that involve a high degree of public service, and they are unanimous that the Government's proposals should be rejected.
I shall end on an entirely parochial note. The Chatham dockyard is in my constituency. It is well known that, year after year, many cases of industrial disease, including leukaemia and cancers, are emerging. It is almost certain that those cases result from nuclear exposure at the dockyard during the 1980s. I simply ask my hon. Friend the Minister, will those cases be covered by any exception in the Bill? At the moment, they are not. At the moment, those people would have a right—
;ws: No, they do not have trade union backing, and my hon. Friend knows perfectly well why—hey were working in a dockyard.
If such cases do not have trade union backing, will they be able to obtain legal aid? I ask my hon. Friend the Minister to give me that answer.
§ 6 pm
§ Mr. John Burnett (Torridge and West Devon)
The reaction of many people who are attending today's debate is that it could be just another occasion when lawyers seek to defend their vested interests and restrictive practices. Many Members who are not lawyers will come to this place with, at the back of their mind, the thought, "Och, it is time to zip up your pockets, because the lawyers want to retain the status quo, which suits them well." I hope that, in my speech, I shall disabuse the House of those ideas, explain why I think that much of the Bill is misguided, and suggest constructively what can be doneto change the Bill and genuinely to improve access to justice without compromising the integrity of our legal system.
I must declare an interest. I am still a partner in a firm of solicitors, but I can tell the House that I shall be leaving my firm in the near future.
On 28 July 1998, hon. Members debated in Committee the draft Conditional Fee Agreements Order 1998. The Government are intent on solving what they perceive to be the budgetary problem of legal aid by greatly extending conditional fee agreements and making other changes. However, before I discuss conditional fee agreements—no fee—like to be the first to agree with the Government that changes need to be made to legal aid, and that a preferable system should be introduced to open up justice to middle-income Britain.
Regarding legal aid, there are areas where change should and must be made, dealing first with the merits test. It is beyond me how the merits of a case are gauged, and I can illustrate that by taking the example of two cases.
In one case, a constituent, the defendant, sold a business many years ago. The plaintiff claimed that he had not got what he paid for. Not only did the plaintiff get legal aid in respect of the first case before a judge, which he lost, and for the second case before another judge, on the same 268 facts for the same claim, which he also lost, but he has now been given legal aid again, for an appeal. It is beyond me how that individual was granted legal aid for the third time, let alone the second. The state is effectively funding this case for the third time, while the defendant, who does not qualify for legal aid, has run out of money to hire a lawyer to defend him and must now do it himself.
The scandal is that that defendant has no hope of recovering the costs that he incurred earlier, despite the fact that he has won twice. That is an unfair element of the existing legal aid system. Time and again, the non legally aided party settles what are sometimes the most unmeritorious cases, simply because he is on a hiding to nothing. If he wins, he still loses his own costs and he may as well buy off the other party in respect of that sum in any event, right at the start.
Another case, from the opposite end of the spectrum, concerns a young girl with devoted and caring parents, who has suffered, and still suffers, from an illness that renders her weak and emaciated. She had treatment and was abused by a person who was supposed to be treating her. Omitting for a moment the criminal aspects of the matter, it is proving very difficult indeed to get legal aid for that person, whose condition has been severely exacerbated by the professional who was there to look after her. That is despite the fact that there is evidence in writing from two other professional people to the effect that they saw the young girl being subjected to inappropriate treatment, and the fact that the individual concerned was suspended some time ago in an internal inquiry that has been completed not in respect of the case of this particular girl but in respect of the case of two other girls subjected to similar treatment.
There is every good reason to look into how the Legal Aid Board measures the merits of the case, and I am glad to note that the Bill starts to address that problem. I believe that significant savings could be made if the right experts were available to measure merits on the basis that I have just outlined, and if the people with the right expertise were available to look into the means of applicants for legal aid. Subject to safeguards, 1 welcome the fact that the Bill contains provisions that will assist in more accurately measuring the applicants' means. I am convinced that there are savings to be made there, too.
The Government are providing that civil legal aid is to be administered through the community legal service. That will involve contracting and franchising. It will draw in citizens advice bureaux, independent advice centres and law centres—alled not-for-profit sector. I am delighted that the not-for-profit sector is now to be recognised, and I hope that it gets the funding that it deserves. Many of us are worried about how the system of contracting will operate, especially in rural and remote areas.
I believe that the idea behind franchising and contracting is sound. On 27 January 1999, we debated in Committee the draft Legal Aid (Prescribed Panels) Regulations 1998. I said then that specialisation should be encouraged, and I believe that it should be encouraged for those who seek to obtain contracts. Contracting will assist in monitoring standards and in fighting fraud— regrettably, there is fraud among a few solicitors. It should ensure that better value for money is obtained for the public purse.
269 What horrifies me is that the Government envisage only about 3,000 of what they inelegantly describe as outlets. There are now approximately 10,600 outlets for legal aid. I remind the House that it takes two to litigate, and that each party must be separately represented. There should be an element of choice. Three thousand outlets is simply inadequate, especially taking into account the needs of rural areas and rural towns. There will be large areas with no access and, effectively, no choice.
I should like to draw the House's attention to the matter of open-ended costs—another aspect where I believe that there is potential for containment of legal aid expenditure. Considerable work has been done by the Bar, the solicitors' profession and certain experts on a system of graduated and integrated fees.
In the past, some senior QCs have been paid inordinately large sums for certain well-publicised legal aid cases. It is not just the Bill that has precipitated a rethink of fees, especially legal fees; that has been going on for some time. The Lord Chancellor's Department now has full details of what is proposed by the Bar, the solicitors' profession and certain experts for a system of fixed, graduated fees, which are integrated. That means that clients, and the Legal Aid Board when granting a certificate, will not be signing a blank cheque. They will know what they are in for financially, except in the most unusual cases. That is an another area where money could and should be saved.
I have described some of the ways in which the existing legal aid system may be altered for the better—ways in which money can be saved and better targeted. Conditional fee agreements are the Government's proposed means for widening access to justice to middle-income Britain, but, as I have said in previous debates, they are deeply flawed in so far as they pitch the interests of the client against those of the lawyer. The temptation for the lawyer will always be to settle and get his money and his uplift instead of maximising his client's claim.
In any event, conditional fees cannot be made to work without after-the-event insurance covering defence costs, and there is no real sign yet that the insurance cover is available, and at what cost and on what terms. It is simply no good for the Minister to say that it is up to the market to come up with appropriate policies.
Before conditional fees are extended, the least that the Government can do is satisfy the House that insurance cover is available at a reasonable charge, and not with unduly restrictive terms and conditions. I warn the Government that premiums in relation to personal injury cases in which the prospect of success is over 90 per cent. have doubled in the past year. We can also be certain that that form of insurance will involve a significant cost, and that conflicts of interest between clients and lawyers will be as nothing when insurance companies come into the proceedings. They will dictate the terms; they will dictate the conditions; and they will dictate the settlement.
I also believe that only the very best cases will be taken on the basis of conditional fee agreements. Anyone with any knowledge or experience of litigation will know that only when proceedings progress is it possible to gauge the merits of a case. In many meritorious cases, justice will 270 be denied and individuals will be denied justice. The opportunities and temptations for lawyers to cut corners and not make proper disclosure will be abundant.
I am particularly disappointed that the Government have not seen fit to do far more work on the contingency legal aid fund. I believe that, under that system, access to justice will be truly opened to middle-income Britons and others. The integrity of the law can be retained if a lawyer has at heart not his own interests, but those of justice and his client. The Bill contains a tepid reference to that form of funding, which might be taken up in the near future. That, as I say, is disappointing.
The Bill contains serious flaws. Time and again, despite concessions made on clause 4 in the other place, it arrogates to the Lord Chancellor, effectively, powers to dominate and run the legal professions. Under the present arrangements, the Lord Chancellor must carry others with him. For example, in respect of the rights to conduct litigation, he must carry with him four designated judges: the Lord Chief Justice, the Master of the Rolls, the President of the Family Division and the Vice-Chancellor. The Bill, however, requires him merely to consult and then decide.
Time and again, the Bill allows the Lord Chancellor to override his consultees and, effectively, make decisions himself. The Lord Chancellor straddles all three pillars of our constitution: the Executive, the legislature and the judiciary. His office is a contradiction of the doctrine of separation of powers. Once the Bill has been passed, there will be nothing to inhibit or check the Lord Chancellor in his complete dominance of the professions, the conduct of litigation and the funding and control of the legal services commission. I hope that Labour Members will give careful consideration to that aspect in particular before voting on the merits of the Bill. It constitutes a major erosion of the independence of the legal professions, and the Minister with absolute control will be in the other place.
During the last Session of Parliament, an early-day motion signed by more than 100 Members of Parliament called for an independent Department of Justice, with the responsible Secretary of State accountable to the House of Commons. It is a shame that the Government have not seen fit to curb the powers of the Lord Chancellor, and to make the office more accountable. Instead, the Lord Chancellor is to have even greater power.
§ Mr. Keith Vaz (Leicester, East)
Surely an affirmative resolution of Parliament, not just a decision by the Lord Chancellor, will ensure that certain other resolutions are passed.
§ Mr. Burnett
Regrettably, the Lord Chancellor's powers under the Bill are not all so circumscribed. My point is that there should be a Minister who is accountable to this House of Commons, rather than an unelected individual in the other House.
§ Mr. Garnier
The point raised so eloquently by the hon. Member for Leicester, East (Mr. Vaz) was also raised in the other place. It was dealt with effectively by peers representing the Liberal Democrats and the official Opposition, and by Cross Benchers, who pointed out to the Government—if the Government had not already realised—that the affirmative resolution procedure is 271 never overturned by the House of Lords and, given this lot's majority of 179, will not even be considered sensibly in the Commons, either on the Floor of the House or in Committee. The comfort that the hon. Gentleman takes from the affirmative resolution procedure is not justified in the current circumstances.
§ Mr. Burnett
I am afraid that the hon. and learned Gentleman's point is germane to virtually every piece of legislation that is dealt with on the Floor of the House. The Government have an overwhelming majority, which is regrettable—but I hope that, having considered some of the matters in the Bill and some of the issues that I have raised, Labour Members will think again before traipsing into the Lobby tonight.
Another serious flaw in the Bill is the introduction of what could be described as a state defender system. The state should not be both prosecutor and defender. Of course it is for the state to be the prosecutor, but it should not be the defender as well. To any impartial observer, that conflict of interest is stark and obvious. A defendant accused of a crime has the vast power of the state ranged against him. He is alone, and seeks impartial and independent counsel, advice and protection. Defendants will want to turn to a lawyer who is wholly independent of the vast apparatus of the state that is being mobilised against them.
In another place, a purposes clause was inserted into the Bill, which the Lord Chancellor has derided as a gimmick. The clause may not have been perfectly drafted, and there is scope for amendments to it; but what is wrong with a clause that enshrines the Government's stated aims and objectives? The Government agree that there should be access to legal services, that such access should not be impaired by disability or other inaccessibility and that high-quality legal services should be available to the legally aided litigant, rather than being the preserve of the wealthy. Those are the aims that the Government say they espouse; what objection can they possibly have to the enshrining of their aims in a purposes clause?
On the matter of accessibility and disability, I consider it particularly mean and niggardly of the Government to abolish all legal aid for personal injury claims. I believe that they are considering retaining legal aid for disabled and vulnerable groups. I wait to hear from the Minister the Government's exact proposals in respect of legal aid relating to personal injury, and what guarantees they propose for disabled people, minors and other vulnerable groups.
I referred earlier to the huge extension of the Lord Chancellor's powers. Nowhere is that clearer than in the area of finance. Effectively, civil legal aid is now to be such sum as the Lord Chancellor deems fit, and for such cases as the Lord Chancellor deems appropriate after the provision of funding for the criminal defence service. It is possible that the funding for the criminal defence service will completely squeeze out the funding for the community legal service. That is very unsatisfactory: it could mean that many hundreds of thousands of our countrymen, if not more, will be without any remedy for wrongdoing. Their whole lives could be jeopardised by the decision. I ask the Minister to reconsider the funding proposals, and to ensure that there is not only proper and adequate funding for advice and representation for defence in criminal proceedings, but an adequate and separate fund for civil matters.
272 Finally, let me mention one or two surprising omissions from the Bill. I believe I heard the Lord Chancellor say on the "Today" programme on Saturday 20 March that the Government were considering the establishment of a judicial appointments commission. Why is that not in the Bill? I have raised the matter in the House in the past, and have received stonewalling replies. We want a more open and transparent system, not just for the appointment of judges but for other senior legal appointments. With the incorporation of the European convention on human rights and the vast growth in administrative law and judicial review, judges will more and more frequently make decisions that can be described as political. The background, affiliations and views of judges should be in the public domain. I do not believe that judges have anything to fear from that.
One of the inequities of the present legal aid system is that successful non legally aided parties can virtually never recover their costs. As I said earlier, that puts such parties in an appalling position. Time and again, legally aided litigants with frivolous claims are bought off. Surely the time has come to put parties on the same footing as to costs, whether or not they are legally aided.
Parts V and VI relate to magistrates courts. If there is one aspect of legal affairs that infuriates hon. Members, it is the arbitrary and peremptory closure of magistrates courts in their constituencies. Hon. Members are right: justice should be done and be seen to be done locally. We shall therefore table an amendment in Committee calling for a presumption to that effect and enabling a local authority affected by the closure of a magistrates court—that means not just the paying authority, which already has this right, but another affected local authority—to appeal any proposal for closure of a magistrates court.
Finally, the Bill is unlikely to stir great controversy throughout the country. It is an easy Bill for the Government to railroad through two years before a general election. Its consequences, like the measure to tax pension funds, will not be felt for some years. If the Bill is passed, there will be an erosion of standards in the legal profession as it embarks on what will become a US-style contingency fee operation. London, which has hitherto been the preferred place for litigation in international disputes, will cease to hold that pre-eminent position, and individuals will consult their lawyers knowing that the interests of the individual are pitched against those of their lawyers. I hope that the Government will reconsider the Bill. For the reasons that I have given, my hon. Friends and I will vote against it tonight.
§ Mr. Mark Todd (South Derbyshire)
I hesitate to contribute to the debate. I am not a lawyer, although that might be seen as a qualification rather than a bar to my speaking. When I was younger, my mum and dad both wished me to be a lawyer, and I have often reflected that it might have earned me greater rewards than the choice that I made. There are plenty of advocates of the profession in the Chamber, who will be able to speak much more persuasively than I can on the aspects of the Bill that have already occupied considerable time.
There is much to commend in the Bill. The major elements are the establishment of a community legal service and the introduction into legal services of contractual relationships and quality assurances. I have 273 been exposed long enough—as an ordinary individual and as a Member of Parliament—to the mediocrity that one often finds in legal services to be convinced of the need for change and for a clearer relationship between the Government paying for a service and the quality that that service provides for the citizen. That, I am sure, is one of the goals of the Bill.
My one hesitation centres on whether the distribution of that service may be tackled in the same way as the distribution of magistrates courts. If it is, I will regret my support for that aspect of the Bill, as the Minister involved has already sanctioned the closure of a magistrates court in my constituency and judged that local justice will be served adequately despite that. Obviously, I would be concerned if he took the same view about the availability of quality legal advice in my area.
I welcome the news of the Government's amendments on the operation of the Office for the Supervision of Solicitors. That is a sensible step, which will have my full support, as will the greater choice of advocacy arrangements that should be available. I have heard the remarks about the closed shop of the legal profession. I would welcome the opening up of opportunities for others to take part in the advocacy process.
However, I remain hesitant about one aspect of the Bill—the availability of legal aid in cases of personal injury. I would not go as far as my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) in my response. That may be partly through ignorance, but it is also partly in the hope that the Government may better explain what they are attempting to do, and may consider more deeply some of the alternative paths to achieve a goal which I largely share.
The proposals to extend conditional fee arrangements to cover most civil claims, including those for personal injury, are eminently reasonable. I have listened to the argument that the overwhelming majority of cases are won. In commercial terms, that suggests to me that the risks involved are eminently insurable. I see no reason why the bulk of cases dealing with personal injury could not be dealt with through insurance arrangements.
It has been argued that legal aid spending in this area is good value for money, because the net public cost is so tiny. On one calculation, the net public cost was £35 million in a year, which is a trivial amount in public spending terms. That calculation did not, I think, take full account of the benefit repayments that might have been achieved as well. Nevertheless, I recognise the desire to reduce the scope and focus of legal aid. That should deliver some administrative savings and simplicity in the way in which legal aid is offered, which may be a laudable goal.
I am doubtful whether all cases currently funded under legal aid can be covered in the way suggested in the Bill. I noted with care the Minister's reference to exceptions where a case of quality might not be properly dealt with through the insurance route, and to the steps that could be taken to deal with that. I shall return to the subject in due course.
I should first be interested to hear more about the research that has been done on the operation of conditional fee arrangements. That has already been raised in the debate, and the answers have been given 274 courteously but have added little to our knowledge of the subject. As far as I am aware, the research to date has been inconclusive and has indicated that there is a risk of gaps appearing in the service available. If there is further information, the Minister could add to our knowledge at the end of the debate.
Secondly, I should welcome some reassurance that successful cases that have been won with legal aid in the past would have been won under the system introduced under the Bill. I recognise the role of trade unions in this respect. My constituency contains many former mining employees who have gained from the cases relating to emphysema and white finger. In such cases, active trade unions have been able to support individuals and demonstrate the liability of the company for which those people worked.
However, that does not always apply in cases of industrial injury. I listened to the words of my hon. and learned Friend the Member for Medway who has left his seat—or, rather, has moved from his seat to another location. He cautioned that that may not always be true, and I share his concern that cases of industrial injury should be pursued with vigour and with the hope of success under the provisions of the Bill. I would welcome reassurance of that.
Thirdly, I am worried that some cases with extremely high preliminary costs may not be satisfactorily covered. A constituent of mine who is a specialist in this area quotes an example of a constituent who was knocked down in a road accident by an uninsured driver and suffered catastrophic injuries. There were no witnesses. Assembling a viable case cost about £50,000 before it reached court and, eventually, satisfactory settlement.
That is a major cash-flow burden for a partnership. The Government need to explain how a partnership can meet the sudden arrival of such a burden. Many practices would not be able to absorb such a substantial bill and would have to turn the case away. Even if the case was of high quality, the costs of taking on expert and medical advice would be beyond the means of the practice and would be a bar on its taking on and supporting the case. The cost of the case that I have cited was probably not exceptional. There must be many others where another nought could be added to the figure. Such a sum would deter even the most substantial businesses. The likelihood of the case's having a long gestation and its taking some time to recover the money would also be a deterrent.
That could apply in cases requiring proof of industrial diseases. We have seen how long it took to reach a conclusion in cases involving emphysema and white finger. Those cases were covered by trade union involvement, but a normal solicitors practice may not be able to undertake such a burden. Discretion is available to the Lord Chancellor. I listened carefully to the words of my hon. Friend the Minister on that. I have some democratic concerns about that discretion being left solely to the Lord Chancellor. The coverage of that discretion and how it might be applied has also not been explained—at least not to me. I would welcome clarification on that. I might well be satisfied if it were clear that there was a way of catering for exceptions that dealt with my concerns.
An insurer has the power to insist on a particular lawyer being used in a case. There may be merit in advising a client to avoid a particular solicitor who does not have the 275 necessary expertise for a case, but I have some concerns that the bias of insurers may warp the marketplace between competent firms who are able to represent a case. People who are well able to support a client may be ruled out because they do not appear on an insurer's list of approved solicitors.
I hope that the Government will accept my constructive concerns about the Bill. I look forward to the comments of my hon. Friend the Solicitor-General, who may be able to explain the Government's intentions a little further and reassure me about them.
§ Mr. Dominic Grieve (Beaconsfield)
It is a pleasure to participate in the debate, particularly because the issue was in fundamental need of being addressed. I declare my interest as a practising member of the Bar. I am particularly involved in personal injury and criminal law relating mainly to health and safety. I have said for some time that difficult issues in relation to access to justice have to be faced, and that change and amelioration are required to provide an efficient service. The Government deserve to be commended for their willingness to tackle the issue. I profoundly believe that if it is tackled properly and if we nudge the system in the right direction, with radical changes if they are required, we can have an efficient system of access to justice for the next century, continuing a fine tradition that has stood this country in good stead internationally for a long time.
I ask the House's indulgence while I dwell for a moment on principles. There is a great tendency to criticise lawyers and I dare say that such criticism is often justified. We often hear criticism in the House of our system of justice. The system of justice in this country, as anywhere else, is fallible, because it is a human system. Perfection is not achievable; we can only try to do our best. However, when we try to change the system, we would do well to avoid throwing the baby out with the bath water.
I have heard a continuous stream of praise from foreign countries for the way in which our system of justice operates. I have particular knowledge of and close associations with one foreign country—a near neighbour of ours. A number of nuggets stand out in that praise. Our system of justice and those who administer it are seen to have high standards of conduct and probity. However—this is the matter that the Government are right to address—standards of efficiency are not necessarily so high. The independence of our system of justice is also central to the respect that it is accorded. The independence of the judiciary and the lack of compartmentalisation of those who serve in the justice system are a matter of wonder to many who come from abroad. It is a central feature of our criminal justice system that lawyers are interchangeable and we have steered well clear of a public prosecutor system for advocacy in courts and of public defendants. The House would do well to bear in mind the fact that that meets with considerable praise and is compared favourably with countries that have such systems.
When we address the need for change in our system of access to justice, I am concerned to preserve what is good, while enabling change to meet the undoubted financial constraints that are placed on the system. There has been exponential growth in the funding of legal services, 276 particularly legal aid, over the past 25 years. It is a point of some pride that most of that growth has occurred under a Conservative Government. The figure rose from less than £100 million in 1979 to £1,000 million 11 years later. That hardly reflects a lack of concern from that Government about the principles of justice.
At the opening of Maidstone Crown court by Her Majesty the Queen, the point was made that the dispensation of justice is the original social service provided by the state. It is the basic contract by which people subordinate themselves to the state, in return for being provided with protection. It is, therefore, of particular importance that people should not be excluded from the system. One hundred years ago, a High Court judge said that justice was open to all, like the Ritz hotel. He was making the perfectly proper point that justice was for those who could afford it. We have come a long way in the past century, but I am troubled that some of the measures in the Bill would result in our turning our backs on the basic principle of access to justice for all.
I do not want to repeat the speeches that have already been made, but I should like to refer to some of the key issues in the Bill. The first, spoken about so eloquently by the hon. and learned Member for Medway (Mr. Marshall-Andrews) and others, is legal aid, the introduction of conditional fee agreements, their substitution for legal aid and the removal of legal aid from those who were previously entitled to enjoy it. From my experience as a practitioner, I know of the number of people who have fallen outside the legal aid net and therefore have found litigation beyond their means, but trying to solve that problem by removing a new raft of people from access to justice is a peculiar way to go about it.
Much has been said about personal injury. There is no doubt—the reasons have been properly spelled out—that, because personal injury often involves being maimed and disabled, it is of particular importance that people should be able to obtain compensation. I have no doubt that, under the legislation as it is drafted and under the rules as they will be introduced, many people with valid claims will be deprived of access to justice and of success in relation to those claims.
Under the legal aid system, personal injury legal aid has been one of the most successful sectors in terms of good results—I think that 91 per cent. was the figure quoted—so why has that sector been chosen as the one to be deprived of all access to legal aid? It beats me. It is ridiculous when the service is a small component of the total legal aid bill and the results have been so successful. There seems to be some hint of movement on that point. I hope that, in Committee, the Government will consider moving some way towards ensuring that the most vulnerable in society are still provided with access to legal aid.
Another issue on legal aid has not been touched on. There seems to be a general assumption, which I find curious, that just because certain issues do not involve personal injury and do not fall within the restricted categories that will be laid down in clause 29, the people affected should also be deprived of legal aid. Indeed, I understand the instruments to carry that out have already been drafted and are awaiting the passage of the Bill.
I am the first to accept that much litigation concerns commercial issues, where people may reasonably be required to make sound value judgments and where they 277 may have the funds necessary to fund their own litigation—classic areas where conditional fee agreements might work—but, as time goes on, legal aid will be withdrawn from many categories of litigation that are outside personal injury. The moment a case emerges, people will realise that they deserve support.
I give one example. There is much litigation concerning property rights. As I have experienced as a lawyer and an advocate—it has happened since the middle ages—frequently, the rich seek to assert property rights on those who cannot afford to litigate. The disputes involve rights of way and boundaries, and often concern people who have very limited means. Often, the redress that they seek is not damages, but an injunction, or some other form of protection against those who try to bully them. Much of that still goes on.
Under the legislation, soon, those people, however deserving their claim, will no longer be eligible for legal aid in any shape or form. Such litigants or potential litigants will not be able to get a conditional fee agreement. They will be deprived of access to justice. Hon. Members will find their postbags starting to fill with letters from those who, just as in the 19th century and earlier, are saying, "I have no access to justice. I cannot afford it. I have no ready money and no one is prepared to help me." That is scandalous, but it is one of the possible and likely consequences of the legislation, unless the rules, when they are introduced, make allowance and contingency for such possibilities. I do not believe that they will, because the Government appear to be embarked on a blanket approach. I hope that they are not, but it is worth pondering these matters. Personal injury on its own may be the classic example, but there are others.
Much has been said in general praise—the one point that has attracted praise—of the community legal service that is to be set up under the Bill. I have nothing against a community legal service—indeed, I welcome it…x2014;but, first, it will have to be properly funded. If one looks at the way in which that funding will occur, one must have serious doubts about whether sufficient money will be available.
There is a profound irony about the matter. In the past, community legal aid services were provided throughout the country by the high street solicitor. Indeed, one of the features of this country was that it had such a ready availability of legal services. I see the hon. Member for South Derbyshire (Mr. Todd) shake his head. I am mindful of the fact that the distribution could at times be sporadic, but when the green form scheme was working and when many high street solicitors had not lost their main crust of bread through the conveyancing monopoly, quite a large number were around to provide that service. The irony is that, having gradually started to reduce their number, we are producing a new service that is equally funded by the state to substitute for it. I hope that it provides an adequate service, but the fate of the poor old high street solicitor, who was uniquely dependent on state subsidy through the legal aid fund and other methods, does not bode particularly well.
I have served on the management committee of a law centre in Hammersmith. I am aware of the major contribution that the service can make, but the funding will have to be there, or this part of the Bill is mere puff.
278 I come to what troubles me most: the criminal defence service. That was where I cut my teeth in my career as a barrister. I started out at the Bar as a circuit practitioner, practising particularly in Kent, which had a reputation for its Bar mess, where people met, spoke, interchanged ideas and practised. It was held up as a model of its kind.
The central feature of the mess was the interchangeability of the advocates' functions. On Monday, one would be prosecuting and, on Tuesday, defending. That could go on. One would be against different ranges of opponents, but the body of advocates was held together by high standards of professional conduct. Professional conduct, especially in matters relating to criminal defence and prosecution work, is central to maintaining confidence in the administration of justice.
With the introduction of the duty solicitor, individuals were often anxious. How right the right hon. Member for Llanelli (Mr. Davies) was when he mentioned the loneliness of those who are caught up in the criminal justice system. They require reassurance from independent practitioners. I am dubious about the whole system of the state prosecution service that is rapidly developing. Equally, we are going down the wrong road in seeking to provide a criminal defence service. It will undoubtedly be under financial constraints. I share entirely the view that has been expressed that pressure will be placed on defendants by salaried lawyers about the way in which they are represented.
Let me remind the House about countries where such systems have operated. I recall visiting the Soviet Union in the early 1990s when it was turning into Russia. I was struck by the total lack of status of the members of the legal profession whom I met. They were mere ciphers and cogs in the state machine and there was absolutely no confidence in their professional ability or integrity. They were conscious of that and sought to visit Britain to see how our system operated. Yet now we are going precisely in that direction.
§ Sir Nicholas Lyell
My hon. Friend is making a most interesting speech. He mentioned Russia, but he also knows a great deal about France. In no way would I equate France with Russia and I have the highest regard for French advocates. However, in the context of what he is saying, does he agree that the French system is far more limited than ours in respect of defending people accused of criminal offences, and that our system is in grave danger shrinking in an area where France is seeking to expand?
§ Mr. Grieve
I agree entirely with my right hon. and learned Friend. I shall return to that point at the end of my speech when I shall refer to the curious drift in respect of our entire legal system, which is underpinned by the Human Rights Act 1998. He is absolutely right to say that other countries have been trying to break out of the proposed system. Countries with inquisitorial systems have always given a lowlier position to the advocate than we have. I believe that our adversarial system of justice has much to commend it, yet it will be unsustainable when the Government's proposals come into effect.
§ Mr. Garnier
Is my hon. Friend not also aware that in the United States, which has a system that is quite similar 279 to ours, but has a public defender system, the chief justice of the Supreme Court has warned us against following the American path?
§ Mr. Grieve
I am grateful to my hon. and learned Friend and I am aware of that. I remember back in the 1980s a number of American lawyers who had come here on exchange visits making that point. Indeed, I recall an American chief justice making that point 10 years ago and praising the independence and professional integrity of the legal profession here. That brings me to my next issue, which concerns rights of audience and on which I half support the Government and half do not.
I recall a discussion in my inn of court eight years ago when the issue of rights of audience first came up. I took the same view then as I do now. Although there are many benefits of having a Bar that is separate from the solicitors' profession, there is absolutely no justification for denying rights of audience to those who are qualified to exercise them. I have taken that view for a long time and I stand by it now. Therefore, subject to the comments that I made about salaried employees within state defence systems, I have no objection to allowing rights of audience for solicitors and barristers to grow to a parity. I take the view that they are different kinds of advocate. However, if we are going down that road, we need common standards of professional control and there is nothing whatsoever about that in the Bill.
If we seek to develop a system where advocacy is a separate discipline within the legal profession—and I believe that is the correct way to proceed—requiring high standards of probity and conduct as well as competence, as the administration of justice in the courts is impossible without them, there must be common professional standards and a common professional body to assert those standards. The Bill makes no mention of that and we will end up with a hotchpotch.
Jumping back to the issue of conditional fee agreements, it would be wise for the Government to work with the grain. There is no point in putting temptation in people's way. The point was made about disclosure. If one is entitled to a 70 or 100 per cent. uplift on a conditional fee agreement, the temptation not to disclose a document that appears two days before the trial because it scuppers one's client's case becomes considerable. We should try to work with human nature instead of going against it. However, that does not alter the fact that we need good common professional standards for advocates.
The hon. Member for South Derbyshire welcomed the extension of rights of audience because it allowed more people into the business of appearing in court. I agree, but, just as I would not wish to deduce from that that all professional standards should disappear and that there should be a free-for-all, it must be accepted—and the Government seem half to accept it—that those who practise in court require certain aptitudes and qualifications. It is like being a surgeon rather than a physician. The sooner we deal with that problem the better. If we are to have a core of advocates drawn from the Bar and from the solicitors' profession, it must be addressed. The Bill's failure to do so is another reason why it appears to be a hotchpotch.
I do not wish to take up too much of the House's time, but I want to raise just a couple of other matters. The Bill includes an interesting provision—which I touched on in 280 the question that I raised with the Minister—concerning the transfer of powers from the police to the courts in respect of the enforcement of fines, defaulters and arrest warrants. I am sure that that is beneficial. As the Minister knows, the police are so overburdened that they pick up warrants for arrest from a magistrates court only when they are picking up a defendant for a completely different offence. They do not have time to seek people out.
I entirely endorse that change, but it seems to be another matter on which there is not joined-up thinking on the part of the Government as the people who will be asked to carry out those duties are effectively the old certificated bailiffs—the court officers. Although they have powers of arrest, if a defendant resists, they have to let him go—nor can they search him.
If we are to pass such a heavy responsibility to people working outside the police force, it will be necessary to consider what powers they should have. If we are to give them those powers, we must also consider the civil liberties angle. The Bill simply does not address the issue. It is a classic example of the Government saying, "There is a problem here, so we shall simply toss it into another basket". Unless those who are given the responsibility of implementing that part of the Bill have the necessary powers, and a system of control to do so efficiently and in accordance with people's civic rights, there will be problems. I hope that the matter will be addressed in Committee.
Finally let me turn to the point that I half made to my hon. and learned Friend the Member for Harborough (Mr. Garnier) and which causes me concern. Last year, it was my pleasure to participate in the debates on the Human Rights Bill. As is well known in the House, I took the view that the Government were right to incorporate the European convention on human rights. However, since incorporation, I have noticed in various utterances of the Home Secretary—for instance, in respect of the legislation that we passed last year after the Omagh bombing—that far from the incorporation of the European convention being a baseline on which we would try to build, accepting that we might fall short in some areas, but overachieve in others, it is now being used as a delicious mantra that is stuck on the front of every Bill to justify all sorts of actions, many of which we would never have tolerated previously. That is not how I should like to see the Human Rights Act 1998 work.
When one considers this legislation and asks the question, "Looking at it in the round, will the human rights of the citizens of England and Wales"—I cannot speak for Scotland and the clauses applying to it—"be enhanced by it?", the answer is wholly and compellingly negative. Until someone can persuade me that we can do better than that, I cannot give the Bill my support.
Mr. Deputy Speaker
Order. Perhaps it would be convenient for hon. Members to be reminded that the 15-minute time limit on Back-Bench speeches operates from now until 9 pm.
§ 7 pm
§ Mr. Keith Vaz (Leicester, East)
I, too, should declare my interest—I am a member of the Bar, but do not practise. Some may say that I am not good enough to get any work, but I always admire those hon. Members who are able to have a career as a Member of Parliament and 281 also to practise at the Bar or as a solicitor. I find this job so time consuming that I do not have time to do anything else.
Before I was a member of the Bar, I was a solicitor. I spent three months in private practice. I did not last very long because I forgot to bill clients. The basis of being in the private sector is sending out bills; otherwise, one's principal cannot pay one. Therefore, my very nice principal, John Gittens, suggested that I should go into local government—where I did not have to charge people for my services. I stayed there for two years, and then worked in a law centre in Leicester, which I shall mention a little later in my speech. I therefore do not have the dynastic pedigree of the hon. Member for Beaconsfield (Mr. Grieve), who was not only a banister but the son of a silk.
I welcome the Bill, and agree with the Minister of State that it is a landmark piece of legislation and something of which we can all be proud. It continues along the route that the Lord Chancellor set for himself, from 1 May 1997, when he decided that he would be a reforming Lord Chancellor who was prepared to accept the integrity of our legal system—acknowledging that there were problems with it, but also bringing it up to date. Therefore, in that sense, the Bill is totally in keeping with the Government's philosophy.
I think that we are all proud of our legal system, although, when we hear about miscarriages of justice, we acknowledge that there are problems within it. It will take another Bill, on another day, to deal with all those problems. This Bill is about providing access to justice.
I was disappointed to note that only two Opposition Members were prepared to debate that issue, but then I saw the hon. Member for Buckingham (Mr. Bercow) enter the Chamber—he is, of course, worth 100 of the other Opposition Back Benchers—and knew that my colleague from Leicestershire, the hon. and learned Member for Harborough (Mr. Garnier) was saved.
§ Mr. Vaz
I shall not allow interventions, as time is very short and many of my hon. Friends wish to contribute.
I therefore commend the Lord Chancellor on the Bill. I should also like to say—as there have been comments in the press about his commitment to equal opportunities—that I strongly welcome the way in which he has appointed so many black and Asian silks. He has a record of appointing more silks from the ethnic minority communities than any other Lord Chancellor at this point in office. I thank him for the way in which he has sought to attend so many meetings at which we have addressed the issue of diversity. He is also not afraid to take on the vested interests of the legal profession. Hon. Members, too, should not be afraid to do so, although many of us are from that profession.
I was astonished to hear the comments of the hon. Member for Beaconsfield on the need for more money for legal aid. He is a new hon. Member. I remember being in opposition, for almost 12 years, when eminent persons—such as the former Attorney-General, the right hon. 282 and learned Member for North-East Bedfordshire (Sir N. Lyell)—were telling the House that there was no more money for legal aid.
§ Mr. Grieve
I think that the hon. Gentleman misunderstood what I said. Perhaps I expressed myself badly, but I do not think that that is what I said. The point I was making was that the sums that the previous Government were prepared to provide for legal aid rose exponentially. The previous Government cannot be criticised for starving legal aid, because it provided vast sums of cash. I accept—as I did at the start of my speech—that we have reached a crisis point, which is why I said at the outset that I supported the Government's attempts to address the issue.
§ Mr. Vaz
We can spend only so much taxpayers' money on legal aid. It is quite right that there should be a cap, and that the money should be focused and given to those members of the profession with expertise in a particular field to represent individuals. That is precisely what the Bill seeks to do—to ensure that the enormous resources in the legal aid budget are properly targeted. Legal aid—the green form—exists not to provide trusts for solicitors and barristers but to allow people to prosecute their cases before the courts of this land.
I am glad that we are to reform the Legal Aid Board, and should like to pay tribute to the work of Henry Hodge, the deputy chairman of the Legal Aid Board. He has been a breath of fresh air in that organisation. However, I hope that we shall not simply change the organisation's name, but that there will be a new attitude in how the new Legal Services Commission operates.
Many of my constituents come to my surgery and complain about the time it takes to get the Legal Aid Board to approve legal aid cases. I hope that, in the new-found zeal that we clearly have, we shall ensure that such cases are processed as quickly as possible. I welcome the Government's commitment to prioritising urgent cases, by coding them, which I hope will ensure that the changes bring positive results.
We want the right lawyers for the right type of work. It is not possible for every single lawyer to be an expert in welfare law, immigration law, disability law and criminal law. There are not many experts in criminal law at Clifford Chance—which may have merged since I last looked at the list—or at Slaughter and May. They are not experts in criminal law. It would therefore be absurd if we simply made criminal legal aid available to every firm of solicitors.
The Bill seeks to ensure that contracts are issued to those solicitors and members of the Bar who are expert in their field. That will enable better justice—not only better access to justice, but a better quality of justice—and ensure that people are properly represented by those who have an interest in those fields.
I strongly welcome the establishment of the community legal service. I have always felt that we need to have a much more coherent and cohesive approach in the provision of legal services. I am delighted that the Minister of State has chosen Leicester as one the associate 283 pilot schemes for operation of the new community legal service, and believe that the new commission will pull together all the various strands.
I worry about the possibility that the service may be better in some parts of the country, which have forward-thinking local authorities, and that it may not be so good in other parts of the country. I worry also about the situation in rural areas and constituencies. Perhaps we have to examine that matter much more carefully. Nevertheless, I welcome the commitment to creating a service that is not only national in outlook but deals particularly with local circumstances.
I commend the work of the citizens advice bureaux and law centres. Some people believe that lawyers are the only ones who can give advice, but that is simply not true. For two years, I worked in the Highfields in Belgrave law centre, in Leicester, and learned everything that I know about immigration law from immigration advisers and workers, who were not legally qualified but understood the working of the law.
§ Mr. Vaz
I shall not give way. The hon. Gentleman has just come into the Chamber and has not listened to the whole debate. We also have a time limit. There are very few Opposition Members in the Chamber, and I am sure that he will want to make his own speech.
The problem with law centres is not only underfunding but the fact that they are located only in certain areas, in our big cities and big towns. We have to ensure that if we are to provide legal services through organisations such as law centres, they are funded in different parts of the country.
CABs should be commended. They are composed of voluntary workers who daily go in there and, in some cases, provide complex advice. For a few years, I worked as a volunteer in the CAB in Richmond, in Surrey, when I lived there. The quality of advice given by my co-workers was incredible. The amount of information that came from the National Association of Citizens Advice Bureaux was amazing. We must ensure that the CABs are part of the system. My hon. Friend the Minister of State, who is nodding, will ensure that that happens.
Sir Nicholas Lye11
On a point of order, Mr. Deputy Speaker. I quite understand the hon. Gentleman cherishing his time but—I say this with all friendliness—will he clarify his position? I understood that he was the parliamentary private secretary to the Law Officers. He is quite entitled to make a speech, and it will be welcomed by Government Front Benchers that he is commending the Bill. However, could we have a clarification of his position?
Mr. Deputy Speaker
May I say two things? First, there is injury time for interventions so that an hon. Member under a time limit is not penalised. Secondly, 284 it is entirely up to hon. Members to make their own position clear if that is necessary. There is certainly no rule so far as the Chair is concerned.
§ Mr. Vaz
No, I will not.
I have a problem with the words "criminal defence service," and I think that we should find a new title. It reminds me of the criticism that was used against the Crown Prosecution Service before the dynamic David Calvert-Smith arrived, when it was referred to as the "criminal protection society". The criminal defence service is a service to provide defence for alleged criminals. I know that people do not like the words—which come from the United States—but perhaps the public defender service would be a better title. We need to have people who are expert in defence work, as we have on the prosecution side through the Crown Prosecution Service.
I support and welcome conditional fees. I saw a film last week called "A Civil Action", starring John Travolta, which was all about conditional fees. As the film was made in Hollywood, the lawyer mortgaged his house, the lights were taken out and the fax machine was sold because he wanted to get to the wire to make sure that the case was dealt with. He won the case, and they settled for $8 million. However, the clients would have liked a better settlement. I support the idea of conditional fees, but we must be wary of the fact that people may settle when they think that they have their fees in order. I am sure that we will look at that.
There is a challenge for the legal profession. I say to the president of the Law Society, Michael Mathews, and the chairman of the Bar, Dan Brennan, that they need to get their professions in order. There are bad solicitors and bad barristers—as there are bad practitioners in every profession—but it should not be up to Parliament each time to try to draw attention to the fact that there are problems in the professions. I hope that they—both men of integrity and both leaders of their professions—will ensure that something is done to deal with that problem.
Finally, I commend and echo the words of my noble and learned Friend Lord Falconer of Thoroton, who said on 14 December 1998:I believe that the Bill makes a genuine contribution to making justice more accessible to the general public than it is at the moment."—[Official Report, House of Lords, 14 December 1998; Vol. 595, c. 1201.]I strongly support those views, and I look forward to serving on the Committee, with all the Opposition Members who are present, to debate the matters.
§ Dr. Lynda Clark (Edinburgh, Pentlands)
I am conscious that so many hon. Members in the Chamber have experience in England, while I do not. I am 285 non-practising member of the English Bar; my practice is entirely in Scotland, and I declare an interest as a practising member of the Scottish Bar.
I should declare also that I was a member of the Scottish Legal Aid Board and, in that capacity, I tried very hard to deal with some of the practical problems that we saw in trying to administer the legal aid system. We looked at the issues that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) illustrated. I was conscious that in trying to administer the fund, the problem was not in relation to personal injury, but very much in relation to family work; the bill for which, as can be seen from statistics, is astronomic. There seems to be no limit on it.
I pointed out that if we had legislation, as we do, in terms of divorce that leads to disputes—for example, the fact that we have a system based on irretrievable breakdown on complicated grounds that we have to prove and on which people wish to fight—there is no wonder that we end up with a family law system that is very expensive. One obvious way of reducing the bill would be to give some consideration to our family law, and other law.
I get very annoyed when lawyers get the blame for complicated legislation when we know full well that it is not lawyers that make the legislation, but this House. Since I entered the House, I have railed at the form of our legislation, which is appalling. We need to consider the way in which we make legislation, so that people can understand it. Perhaps we can then reduce overall costs in relation to lawyers.
I hope that the House will forgive me if I touch briefly on the Scottish position. I welcome the main changes proposed in clause 27, which extend the possibility of legal aid in Scotland. They give powers to the Secretary of State for Scotland to prescribe certain proceedings for legal aid where representation may be granted without reference to the financial limits. That opens up new possibilities for Scotland, but it is intended to apply to certain categories of work, such as mental health proceedings. However, the possibilities are endless.
I have not yet heard any hon. Member suggest in the debate that the present system of legal aid funding and delivery is working successfully. We all seem to be agreed that it is not. We have not heard any alternative proposal, and it is plain that dealing with the present system—however one does so—is a difficult task.
§ Mr. Burnett
I listed a number of instances of constructive criticism and further steps that could be taken to open up justice to middle-income Britain, for example. I hope that the hon. and learned Member will agree that they were fairly compelling.
§ Dr. Clark
My apologies to the hon. Gentleman, but they could not have been that compelling because I cannot remember them. I will read them with interest in Hansard.
I would not associate myself with some of the anti-lawyer sentiments that I have heard expressed—not so much today, but perhaps in the other place. I do not accept that the inadequacies of the present legal aid system are the responsibility of lawyers. Politicians must take their fair share of the blame. I am not deliberately 286 looking at Conservative Members in relation to that, but they did have 20 years or so to try to sort the matter out. Lawyers deserve some credit for trying to fill in some of the gaps and the unmet need. It is lawyers, not politicians, who have done that work, often unfunded, to try to solve the problem.
Like many who have spoken today, I am a strong supporter of the independence of the legal profession in a democracy. A strong, independent legal profession with expert knowledge that is able and willing to advise and represent citizens—even in the most unpopular causes—is essential. Many lawyers in other regimes, to my great distress, have died, been imprisoned or been ostracised because of their profession.
Independent expert lawyers who are committed to do their best for their clients in the interests of justice are not to be found only in the arrangements that exist in England and Wales. I hope that the House will bear with me as I mention the Scottish tradition. In Scotland, the tradition has long been that the Crown has prosecuted in the higher courts through advocates depute, who are normally members of the Bar but not necessarily so.
During the time when they work as advocates depute, they are not free, as in England, to accept any defence instructions. They are entirely employed by Crown prosecution work. They normally do this for a substantial period; usually three years, but sometimes much longer. They are paid a fixed salary, which is not excessive—it is quite low, at approximately £50,000—to cover all the prosecution work that they do. That means that their time as an advocate is entirely taken up with Crown work. If they have any free time, which is rare, they can do civil work. They are not paid per case and they do not have the interchange that is common in England.
There are problems in the Scottish system, but lack of independence is not one of them. The advocates depute are known for their independence of mind. They are often appointed directly from that position to be sheriffs in the lower court or judges in the Court of Session.
That model has some interest for the debate. I do not accept that employment per se undermines independence. In any training for lawyers it is important to ensure that the principle of independence and the acknowledgement of the interests of justice are bitten into their souls. I accept that it is important to encourage lawyers to get the widest possible experience and I certainly would not support a system whereby one spends one's whole life prosecuting or indeed defending. It is important to have the knowledge and expertise that come with doing a wide variety of work.
In the other place, there was mention of the experimental scheme in Scotland called the Public Defence Solicitors Office. That was gifted to us by the previous Administration; perhaps it was one of the gifts that we did not appreciate at the time. It is odd that, having gifted to Scotland a public defender system, the Tories now find the creation of the same system in England so overwhelmingly terrible.
I acknowledge that the scheme introduced in Scotland through the 1997 legislation is limited to only six solicitors and is designed as a pilot to test the viability of providing citizens who require state-funded assistance in criminal cases with an alternative to private practice solicitors, but, thanks to the previous Administration, those solicitors are now doing defence work as employees.
287 The scheme has been in operation for only about six months and I am told that already about 24 per cent. of clients are voluntary self-referrals. No clear conclusions can be drawn from the scheme at this stage, but other countries, such as Canada, have long experience of using state-employed lawyers in a mixed system, and surveys of clients, peer groups, prosecutors and judges there have shown high levels of satisfaction.
In 1997, the Canadian Bar Association said that in the criminal fieldit appears that the staff model"—that is, using an employed Bar—is capable of delivering the same outcomes for lower costs than the private lawyer model or slightly better outcomes for the same cost.I admire the English system, but it is not the only possible model for encouraging independence in our lawyers. One of the aims of the Bill is to extend access to justice—there has been widespread support for that from hon. Members of all parties—and it will be judged on whether it delivers that. The previous Administration failed in that aim.
About 20 years ago, I helped to establish a law centre in Dundee, and I am pleased to learn that so many hon. Members have been active in law centres. Even as a young lawyer, I recognised how inadequate was the provision of legal services. I pay tribute to the many lawyers who have contributed in their various ways to help to meet some of the unmet legal need, which is so great that a more directed approach is essential, as are substantial funds.
Law, and access to law, is one of the great tools of social justice. By opening up the law and making assistance available to many more people we make it more likely that Governments and institutions will be challenged successfully when they act unlawfully.
There have been improvements to the scheme in relation to contingency fees. I have never been a big fan of contingency fees, preferring the Scottish model of speculative fees, with no uplift provided, but I welcome the improvements that the Government are introducing in the Bill, and especially the proposed new section 58A of the Courts and Legal Services Act 1990, to allow rules of court to be made in respect of taxing of costs. There should be a challenge in the rules to a contingency fee in which the uplift is unjustified, as part of the taxing process.
I welcome the proposal not to allow the contingency fee to encroach on damages. It is important to remember that, because damages in Scotland and in England and Wales are very much lower than in America, for example, we cannot draw successful comparisons with the use of contingency fees in other jurisdictions. The damages here may increase, which has both advantages and disadvantages, or contingency fees may not be as welcome here as they are elsewhere because the risks involved may be out of proportion to the amount of damages that may in the end be recovered.
I do not accept every single item in the Bill, but I welcome and support it as a package.
§ Mr. Austin Mitchell (Great Grimsby)
Like my hon. and learned Friend the Member for Edinburgh, Pentlands (Dr. Clark), I welcome parts of the Bill, largely because 288 it represents progress on the part of my noble Friend the Lord Chancellor towards my point of view, which I set out in two Bills designed to introduce a national legal service. He is clearly coming towards that populist point of view, aimed at demythologising the law and breaking restrictive practices by having an employed and more competitive legal service. We did not hear anything about that from Conservative Members.
The Campaign for a National Legal Service, of which I am chairman, welcomes all repentant sinners, including, I hope, my hon. Friend the Minister. The problem is that the Bill does not go far enough. I am worried about the fact that it is clearly Treasury driven. The Treasury wants to stop exponential growth in expenditure of any kind. It does not do much about the common agricultural policy, which is exponential in much the same way, but it will do what it can about the law, even at the cost of reducing the access to justice of the mass of the population.
Clearly, the Lord Chancellor has been given a brief to cut and, in his naive, youthful enthusiasm, he and the Minister originally launched into that mission of cutting, boots and all. They larded it with attacks on fat cats—or perhaps I should say other fat cats—but they went for substantial cuts in the legal aid budget. After a horrified reaction, they resiled, and the Bill represents part of that process of resiling. The cuts have been diluted and there are proposals to extend services into other areas. The Bill is something of a rag-bag as a result, but the extensions into other areas are very welcome.
The Campaign for a National Legal Service has emphasised the need for an employed service. Private practice is inherently more expensive and less efficient, with higher overheads, so, if there were two services competing and the consumers could choose whether to pay fees or to proceed through a legally aided public service, that would be the best way of bringing access to justice to the people. That has been our basic principle and it is important to acknowledge that the Bill represents some progress in that direction.
I argued earlier for a public defender service. Such services can be most efficient; they have been efficient in California and they are efficient in Hong Kong and New South Wales. However, the services could and should be provided through law centres, which are also efficient. We know that £8 billion a year is being paid for legal services; if that amount were divided between competing services—an employed service and private practice—and with the addition of some public funding, there would be enough money to provide a competitive service to the people. That would also ensure that lawyers compete to serve the purposes of the people, who would have the power of choice.
A pause for thought to consider how best we could reform legal services to make them available to the mass of the people would have suggested going down the path that I have described. The worry about the Bill is that we did not do that; we went in backwards. First, we hoped for cuts, and it was only when cuts proved impossible that we considered alternatives. However, because we did not make those alternatives as firm and definite as they needed to be, we went only part of the way towards the necessary conclusion. That is the problem; the Bill is not based on a fundamental rethink of how we can best bring legal services to the mass of the people. It has always been the Labour party's hope to provide a national legal health service—a universal service according to people's 289 ability to pay—and to enact the right to representation and set up a framework to secure it. We did not approach the matter in that way; we went into it backwards and that is what is disappointing about the Bill—one step forwards, one step back. However, there has been some progress, although I regret that the opportunity to make further progress has been wasted.
The Bill is not only a wasted opportunity, but a risk. Unfortunately, that risk is shouldered mainly by the poor, not by the legal profession, although its members are certainly frightened—the representations that I have received from solicitors show fear and nervousness—because they are faced with a substantial change. The poor are being transferred from a publicly supported, public service of legal aid to a competitive market. That market might offer rich pickings to big firms of solicitors and insurance companies, but it will not necessarily help to advance the cause of the poor in compensation cases.
There have been drastic cuts to legal aid, but it is not responsible to make such cuts until we have an alternative that we know will work and will take on the burden carried by legal aid until now.Supporters of legal aid must never cease to emphasise that it is a highly successful public service. In civil cases that reached judgment in 1995-96, the proportion of cases in which there was either a settlement or a judgment in favour of the assisted person was 91 per cent.That is not me speaking but the current Lord Chancellor, who pointed that out three years ago. He was right then and it is not right to cut legal aid as we are doing. Legal aid is being cut for minimal savings. The budget for civil legal aid in 1996 was £1,276 million, of which £436 million came back to the legal aid fund. In personal injury cases, £225 million was paid out and all but £37 million came back into the fund. We are doing great damage to poor people's access to representation for the sake of £37 million. We are forcing them off the great enabler—guaranteed legal aid—into a risky system that might not work.
Some lawyers would argue that it is wrong in principle to do that. I cite one who spoke in the House of Lords:I regard contingency fees in any shape or form, however, diluted, as abhorrent",at which some noble Lords cried, "Hear, hear!" They were probably hereditary peers whose views do not count for much in such matters. The noble Lord continued:The argument that professional standards are so high that there would be no risks does not impress. Lawyers are ordinary human beings. No lawyer at the front end of litigation should be in the position that the ability to pay next month's mortgage turns on the outcome of the case. Litigation turns on advocates being trusted by the courts and by one another to play fair. Flirting with contingency fees is another gimmick to avoid state responsibility and to secure justice on the cheap. Like so many bargain basement practices, the lawyers would be no exception to the risk that shoddy standards would result."—[Official Report, House of Lords, 7 April 1989; Vol. 505, c. 1326]That is a magnificent quote. It came from a speech by Lord Irvine of Lairg, now our Lord Chancellor. I agree with him on that matter; it is a risk. The insurance products are not developed; we do not know whether they will be available. I have seen one system that asks for a non-refundable payment of £200 merely to look at the case. That will be a considerable burden for ordinary 290 people. There will be cherry picking. It will encourage the fat cats. Big practices will develop to take the best, safest and easiest cases. I cannot see how the system will help the poor and the vulnerable, who will be forced to hawk their case round to try to find a firm of solicitors who will fit it into the risk portfolio that firms will need to have. The poor will need to find a firm that can carry the burden of the expense of the medical evidence and the necessary research. That would be a big burden for small practices. In Grimsby, I am impressed by the effective service provided by competing small practices, but they cannot carry such burdens so it will be difficult for people to find solicitors to take their cases.
When the tobacco court battle ground to a halt, two legal firms spent and lost £2.5 million because the litigants were denied legal aid. Mr. Day, a member of one of the firms stated:This is the only multiparty action that has been funded under the `no win, no fee' scheme … The fact that we've been blown out means the chances of other firms taking on this sort of risk is next to nil. Plaintiffs taking on corporate giants are not going to get access to justice. It's a gloomy day.It will indeed be a gloomy day if such situations prevail. It is essential that we provide a service and protection for vulnerable people—the less well-off, who do not know or understand the problem. We should not replace legal aid until we know that we have a system that will take the strain and serve the purposes of such people. The matter is uncertain. The Lord Chancellor's research paper "The Price of Success" points out that there are many unanswered questions about the contingency fee system. The point is that we are hitting the poor and the risks of the measure are all faced by those least able to bear them.
However, I hope that my hon. and learned Friend the Solicitor-General, who is now sitting on the Treasury Bench, will note that my attitude is now changing from criticism almost to sycophancy. I welcome the attack on restrictive legal practices, although we should take it further and abolish QCs—I see that my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) has returned. We should penalise the late return of briefs, which has been such a problem in the legal aid system. A few years ago, some research in Sheffield showed the problems of representation for ordinary people; they get a service that falls off the back of the practice. The brief is dumped back on the practice at the last minute.
I welcome the independent review of complaints and the strengthening of the role of the ombudsman because the Office for the Supervision of Solicitors has been a disastrous failure. Any Member of Parliament who has had to deal with the office regards it as a cumbersome, delaying, pettifogging mess. I welcome the Legal Services Commission; we should have had that years ago—it was part of my Bill. The commission should be independent; I do not want it to be dependent on political changes from the top—the measure gives a great deal of power to the Lord Chancellor.
Most of all, I welcome the community legal service, which cannot come quick enough. Law centres must be the backbone of that service, providing demystified services to people on the high street. It is tragic that Brent law centre is going bust as we discuss the Bill, and other law centres, including the one in Humberside, which has done wonderful work and is now laying people off, are struggling to maintain themselves. The need for a community legal service must be met quickly.
291 I welcome all that, although it does not go far enough and I am not sure that we shall see the extension to service predicted in the Bill because the civil legal budget is not ring-fenced. It depends on savings being made in the criminal legal aid system, and they may not be forthcoming. Crime keeps going up, and cases are becoming more complicated. The money must be ring-fenced if we are to provide extra services. I would specify the grounds on which money can be made available and strengthen the provision of service.
I must ask myself at this point how I will vote on the Bill. I shall, of course, consult my legal advisers. My QC—my hon. and learned Friend the Member for Medway—has come into the Chamber to advise me since I began my speech, and I hope that he will not return my brief at the last minute.
Mr. Deputy Speaker
Order. I am afraid that I must interrupt the hon. Gentleman before we learn his decision.
§ Mr. John M. Taylor (Solihull)
I had not intended to speak, but have been provoked into it by the refusal of the hon. Member for Leicester, East (Mr. Vaz) to give way. I should have been quite satisfied if he had.
It is good for my soul to make an honest confession of my interests. As the hon. Member for Torridge and West Devon (Mr. Burnett) has heard me say before, I practised as a high street solicitor for 22 miserable years, but went straight about 11 years ago. I must also confess that I was a junior Minister at the Lord Chancellor's Department for three and a half years, which represents at least a loss of innocence and at worst a hideous handicap for speaking in this debate.
The point of entry between myself and the hon. Member for Leicester, East was his eulogy on citizens advice bureaux, to which I would happily have sung a chorus. I was one of the few who helped to start the CAB in Shirley in Solihull as long ago as 1973, when my constituency was represented by the father of my hon. Friend the Member for Beaconsfield (Mr. Grieve) who is sitting just in front of me. We started that very good CAB 26 years ago, and I have the honour still to be its president.
If the Minister or the Solicitor-General were to assist CABs further, they would have my support, and they would do a handsome piece of work by helping CABs to complete computer links in order to share best practice, quite literally at the press of a button. The Government would distinguish themselves by providing financial assistance to the voluntary side.
This has been a rather good debate, and I am sorry not to have been here for all of it. I was particularly impressed by the right hon. Member for Llanelli (Mr. Davies) who developed the theme of his anxiety about the idea that a judge on the payroll of the state might preside over proceedings contested between two other people on the payroll of the state.
The right hon. Gentleman exonerated judges from any suggestion that they might follow what was thought to be their master's way, but was concerned that an employed plaintiff lawyer and defence lawyer in a civil case, or prosecution and defence lawyers in a criminal case, might be jointly motivated to get matters over with. It is dangerous even to contemplate that such a possibility should exist.
292 When I was at the Lord Chancellor's Department, tremendous arguments rattled, almost always unsuccessfully, to and from the Council of Legal Education in the pursuit of wider rights of audience. In particular, it was suggested that prosecutors employed by the Crown Prosecution Service should be able to appear in the higher courts. At that time, they could not, and they still cannot.
The Bill introduces public defenders, presumably with rights of audience in the higher courts. How wide will it throw accession to rights of audience for the employed lawyers? I would not be hostile to that, but if the CPS could not have rights of audience under the existing system, why should public defenders have those rights? In the name of logic, must we not treat the two the same?
I may be trespassing into matters best dealt with at the Committee stage. The points of detail for rights of audience are probably best left until then, but I give the Government Front-Bench team notice, which they scarcely need, that I shall certainly explore rights of audience in Committee.
§ Sir Nicholas Lyell
Does my hon. Friend realise that he is dealing with a point on which the Government have offered virtually no detail? We simply do not know how the criminal defence service will be expected to work, and what the Crown Prosecution Service will be expected to do in the higher courts remains unclear.
§ Mr. Taylor
My right hon. and learned Friend enlarges on the unhappier aspects of the Bill, and I fear that I can do nothing to mitigate the gravity of the problem that he sees.
We heard a most interesting speech from the hon. and learned Member for Medway (Mr. Marshall-Andrews) who generously took an inordinate number of interventions, including one from me. However, I never received an answer to my question to him, and I shall put it firmly on the record once again because it is worthy of an answer, if not tonight, at some later stage.
Some people have spoken in favour of conditional fee arrangements, and some against. I am not coming down on one side or the other, although I marginally favour them. A critical question lies at the centre of the conditional fee issue, however. Simply, what is a win? How do we define success? The lawyer will have an interest in having the threshold of a win set as low as possible so that he may overcome it to receive his uplift. The client has a contrasting interest in the highest possible threshold so that only the best possible outcome rates as a win.
There is a mismatch between the interests of the lawyer and those of the client. There is a further mismatch in that the lawyer is a professional who is about that kind of question day in and day out. He is trained in these matters, and he understands the question. The client does not. That is why I asked the hon. and learned Member for Medway whether he had ever had any difficulty in determining what was a win. I asked whether he agreed that there were circumstances in which an individual client was entitled to independent third party advice on whether what was being recommended to him as a win was in fact fair. That question remains unanswered.
§ Dr. Lynda Clark
I agree that there are practical difficulties. For example, is a settlement proposal a win, 293 or is it not a win? In the context of a contingency fee, it is difficult to decide whether the case should be settled if there is not enough money on the table. Those difficulties arise under the new system, whereas they did not arise under the old system in the same way.
§ Mr. Burnett
I entirely agree with the hon. Member for Solihull (Mr. Taylor), and we have discussed the matter several times in Committee. Does he agree that the problem is even more exacerbated in matrimonial matters? What is a win in a matrimonial case?
§ Mr. Taylor
In my personal experience, there is no such thing as a win in a matrimonial matter.
Perhaps this is the moment for me to talk about the contribution in chief made by the hon. and learned Member for Edinburgh, Pentlands (Dr. Clark). Here is my lost innocence: the hon. and learned Lady does not blame the lawyers. [Interruption.] I am sure that she said that. I have to modify that statement: I do not entirely blame the lawyers.
Has the hon. and learned Lady, or anyone else in the House, never come across a criminal case which proceeded in the following fashion? The lawyer intercepts the client, or vice versa and, after a degree of consideration, the time for which is logged, a not guilty plea is entered. There then follow a couple of adjournments, which are well argued for. Then come the preparation of the depositions, the committal proceedings and a couple of trips to the prison or the cells. The case finally turns up at the Crown court and a jury is empanelled. The plea is then changed to guilty and the bill is submitted. That certainly happens, and I believe that legal aid has been abused in some such cases.
There is another question that I do not think has been addressed so far today, although I confess that I have not been present throughout the debate. Personal injury cases have rightly been mentioned, but what about the duty solicitor schemes? I thought that they were one of the best aspects of legal aid, and certainly represented the best unit cost and the best value for money in the legal aid system.
When I was—that sounds like an old soldier talking, does it not? When I was at the Lord Chancellor's Department, the best value for money in the legal aid bill was provided by groups—or panels, call them what one will—of duty solicitors. Those people were prepared to represent unrepresented defendants. They had to show competence in a particular subject to be on the panel in the first place. They were then paid legal aid rates, and had every incentive to wrap up the case on the day that it started and get back to the office. That is what one did when it was one's turn to be the duty solicitor. Those schemes were good, and the Bill will mean the end of them.
As I near the end of my speech, I shall declare one more interest. I started a duty solicitor scheme. That was before such schemes were permitted; there was no statutory legal cover in those days. In fact, such schemes were offensive to the Law Society's basic rules about the client's ability to choose his own lawyer. We had to go to the Law Society and beg for a derogation from what was then called rule 2—although one would have to look in an ancient tome to find that rule with the same number 294 as it had in my day. That is what we had to do to run a pre-statutory duty solicitor scheme in Solihull, where nearly all good things start.
§ Mr. Taylor
I think not.
All our speeches are subject to a time limit today, and I have no intention of trespassing either on eternity or on your patience, Mr. Deputy Speaker. Having heard what I had to say—when I first stood up, 1 did not know what that would be—I have come to the conclusion that I am against the Bill and will vote against it.
§ Mr. Michael Jabez Foster (Hastings and Rye)
In common with other hon. Members who have spoken, I declare an interest, albeit the minimal interest of being at the end of a list of consultants on the headed notepaper of the firm in which I was previously a partner.
If it were only a few extra pounds that were needed to save the legal aid fund, the House would probably support the provision of that sum. However, the encouraging thing about what the Government are doing is that they are not seeking to save money—at least, not in the short term. The budget for the coming year is higher than the previous Administration's projected budget.
Radical change is needed in the legal aid system that we inherited, because it is costly but still fails to live up to the demands placed upon it. For 25 years, before I entered the House, I was regularly engaged in civil legal aid work and my delight at being elected to Parliament was almost matched by the knowledge that I would not have to fill in another legal aid form.
The old system had become bureaucratic. I have estimated that about 20 per cent. of the time of people doing legal aid work is spent filling in forms, reporting to the Legal Aid Board, and so on. Even within the franchising system, that is still a significant, time-wasting, frustrating and costly element. Having spent 20 per cent. of 25 years doing that, I hope that my first five years in Parliament will be more productive than the five years of my life that I wasted filling in forms.
Of greater concern, however, is the injustice that the present system metes out. One was frequently asked to advise on a case that had little merit, but, because the individual met the qualifications for legal aid and was within scope, one would take counsel's opinion, and counsel would suggest that the case was worth a try.
The injustice was not, of course, done to the happy recipient of the state's generosity, but to the unhappy defendant, who was often bound to settle, perhaps unjustly, because the cost of defending a case against a legally aided party was prohibitive. Perhaps there was no great sympathy for a defendant who was an insurer, but the justice of the case was still questionable.
Other claims were abandoned either because the claimants were out of scope for legal aid—a growing phenomenon because of the changes that were made to cap expenditure—or because the contribution called for was so significant that it deterred the would-be litigant, even if he or she had a good case. Litigation had therefore become a pastime for no one but the rich and the poor.
295 The present system also encourages waste. That is not only the waste in the administration of the process, which I have already mentioned, but the waste that results from the incentive for lawyers to make the most of the legal aid certificate. Milking the legal aid system, although it may be done by only a minority of lawyers, will inevitably be a temptation when there is no one at the "point of sale" to challenge the wisdom of the procedures adopted.
Last night I asked my taxi driver, "Why do you go by the shortest route?" He replied, "Because you're sitting next to me." He admitted that when students used his services at the expense of a language school, he took the long route because someone else was paying. That is what happens, or at least what can happen, with the existing legal aid system.
For those reasons, among others, I welcome the Government's initiative in the Bill. However, I have some comments on two aspects of it. First, there is the extension of conditional fees, which most hon. Members have spoken about. Secondly, there are the contracting arrangements proposed for the delivery of services.
As for conditional fees, I see no reason why a solicitor should not back his or her judgment. They are not being asked to become bookmakers simply to display some confidence in their own advice. I learned of the benefits of conditional fees by accident when I realised that appearing at industrial tribunals was regarded as a non-contentious activity and was therefore eligible for conditional fees. In such non-contentious proceedings it is possible to operate on a conditional fees basis, and I and many other practitioners have found that that provides an effective opportunity for litigants to take their cases, and for the practitioners who have offered that opportunity to be rewarded. The new system gives a greater incentive because of the possible extra bonus available.
I have experience of some of the benefits of conditional fees. First, when one is on them, one is careful about advising that a case is worth pursuing. More especially, one does no more than one must to bring the case to a successful conclusion. The extraneous process with which one can become bound up is to be avoided at any—indeed, one's own—cost. Proper reward based on successful outcome is a challenge that lawyers should seize with both hands. Coupled with the rule reforms, it should enable lawyers to practise real law rather than the tedium of unnecessary procedure for the benefit of no one.
There is also the opportunity of the completely new market of people with genuine disputes to settle but who cannot afford the process under the present system. That is the Government's new deal job creation scheme for lawyers. The legal profession should not complain. It also means that litigants who have not before had the chance will be able to take their cases to law.
I have a reservation about how the rules on disclosure of a conditional fee agreement would operate. To put defendants, such as insurers, on notice of the rate of uplift would be to put them on notice of the perceived strength of the case. The present conditions on legal aid certificates do not make that necessary.
Legal aid, by its nature, is limited. My limited experience suggests that few people with reasonable cases that would have passed the merit test of the Legal Aid Board, or even, under a franchising agreement, of a 296 solicitor, will be denied the opportunity of a CFA. Solicitors already offer no win, no fee opportunities in the national and local press every week.
I am also convinced that the Government are right about the purchase of legal services. A mix of private and voluntary sector provision based on expertise and price will provide the most effective delivery system. Although great play is often made of the theoretical choice that litigants enjoy in choosing representatives, the reality is that it is not as great as it seems. Under the present system, litigants choose their solicitor by recommendation, by where they live or by referral. They often have neither the knowledge nor the ability to judge quality until it is sometimes too late.
The franchising arrangements that have already developed have to some extent been helpful in ensuring that the firms selected for particular areas of work are competent. However, I have reservations about the measurement of that competence, which seems to be based more on compliance with procedures than on expertise offered or success rate. I hope that, under the new regime, more effective means of monitoring results will ensure that high-quality services are provided. That applies in two situations in particular. First, as contracts are available to non-legally qualified bodies, the advice that they give must be monitored by legally qualified personnel, not simply by an administrative procedure.
The second concerns the extension of rights of advocates. I believe that that extension is correct, but it is essential that the advocates let loose are competent in advocacy. Many solicitors would acknowledge that they are not particularly good at it; some banisters are not, but they find out sooner.
Even the present franchise arrangements are valuable, in that successful franchisees gain experience in a particular area of law rather than, as previously, dealing with areas for the first time. That applies especially in sparsely populated areas, where practitioners dabble in all manner of work. While the contracting system is open to the criticism that there may be restriction of choice, it will ensure that the lawyer acting in a case is experienced in the field to which the contract relates, and, I hope, subject to monitoring of results. In many ways, a client with the benefit of a contracted lawyer will have more to be sure than the private paying client who chooses his own.
This is a good news Bill. It is good news for the public purse because it discourages waste and inefficiency. It is good news for clients, many of whom will have access to the conditional fee regime for the first time. For the less well off, there is a virtual Government guarantee that the lawyer is competent. Finally, it is good for the legal profession, which will have the opportunity to specialise more, achieve unit cost savings and provide a more satisfying service for its clients.
§ 8.5 pm
§ Mr. Oliver Heald (North-East Hertfordshire)
I declare an interest as a barrister for more than 20 years. I also lecture on law from time to time. I listened with great interest to the enthusiastic speech of the hon. Member for Hastings and Rye (Mr. Foster). He said that it was a very good Bill for everyone. I would say that it is good in parts, a curate's egg of a Bill.
We should welcome the setting up of the community legal service. I was on the committee of the Free Representation Unit, a body set up by the Bar to give free 297 legal advice in areas of unmet need. Its members included not only barristers but solicitors, social workers and social administration experts. I had the unenviable task of choosing which 15 of the 80 cases that had come in we could service. At that time, some years ago, there was great unmet need in the social welfare field. It is right that lawyers should want to do pro bono work.
The approach with the community legal service suggested in the Bill is a good thing, but we must all share the concern about its funding. The Lord Chancellor said that its funding will bewhat is left over … after the prior claims of criminal legal aid have been met."—[Official Report, House of Lords, 21 January 1999; Vol. 596, c. 738.]That means that overspending on criminal cases could well lead to a cut in funding to the community legal service. I strongly support the idea of the service, but I hope that it will get the money and means to make it work.
That is a good part of the Bill. I am not at all sure about conditional fees. I agree with my hon. Friend the Member for Solihull (Mr. Taylor) that, in certain circumstances, conditional fees can be a good way to finance legal cases. However, the field of personal injuries has been singled out and will rely totally on conditional fees. I am concerned about that. Like the hon. Member for Hastings and Rye, I know that the gateways to legal aid have often not been monitored adequately and that cases have been pursued that should not have been. However, one would not say that that was the case in respect of personal injuries.
The results show that some 91 per cent. of legal aid money spent on personal injuries cases has been recovered. That success is striking. The money from the legal aid budget spent on personal injuries is about £33 million. Is that the area to choose to make a point about conditional fees? I would have said that it was not.
Some hon. Members have pointed to the fact that trade unions provide excellent services in this area. I agree that, particularly in some cases that involved a huge investment of time in preparation and medical research, the trade unions have done excellent work. However, not every case has a trade union to fund it. The personal injuries cases of most concern are often deserving ones where much money needs to be invested to prove them. There are cases where it is not certain medically what the condition is or how it is caused. Such cases need huge sums to be spent to establish them. In cases that are deserving but of less than certain outcome, it is unlikely that many firms of solicitors will want to expend the large sums necessary to ground them. The hon. Member for Great Grimsby (Mr. Mitchell) gave the example of the tobacco case, which has recently been before the courts. In that case, £2.5 million was spent on a no win, no fee basis. The solicitor who was involved said plainly, never again. There are important and deserving cases where funding will not be available.
There are other cases—not necessarily involving conditions such as emphysema and white finger—such as motoring accidents that are out of the ordinary. For example, there is the case where to establish the liability of the opponent it is necessary to bring in an accident reconstruction expert. It is necessary also to have the vehicles involved thoroughly examined and to present 298 medical evidence about the injuries. On first receiving a case as a lawyer, one would say, "There is nowhere near enough information." At that moment, someone would have to decide whether to take the risk of undertaking the case on a conditional fee basis. Many firms would say, "It is too risky to spend that sort of money trying to establish a case."
In such a case, the cost of insurance would be high. It is said that for the run-of-the-mill case it would be £300, but in a case where a large sum needs to be invested to establish liability, there is talk that the insurance premium might be as high as £20,000, a sum which is beyond the reach of most individuals.
We know that at present 91 per cent. of legal aid provision expended is recovered, which suggests that it is an economic process. If we proceed on a no win, no fee basis with an uplift of up to 100 per cent. and recovery from the opponent of insurance costs incurred, the overall legal cost per case will rise. As a consequence, insurance premiums could increase in personal injury cases. Overall, we could move from a system that is very efficient and does not cost much money in the scheme of things to one that, on average, costs more per case. Yet in the most deserving cases, where legal aid is most appropriate, no one will be prepared to fund the action. I have concerns about conditional fees.
I am not entirely convinced that civil legal aid should be dealt with exclusively through contracts with quality assured firms of solicitors. One of the beauties of the English system is that high street solicitors have been ready to take on a wide range of work. An individual can approach such a firm and obtain advice. Of course, some cases are extremely complicated, but there are many where it is not necessary to be an absolute expert to be able to give sensible, competent advice. Access to justice in a locality is important and there is a danger that that will be denied by the scheme before us. With the best of intentions, it will lead to much red tape and many solicitors' firms saying, "We cannot go through the process of becoming quality assured. We shall not do this work." That will deny people access to justice.
As for the criminal justice defence system, I do not share the optimism of the hon. Member for Great Grimsby that there will be an improvement if there are salaried lawyers on both sides of the case who are both paid by the state. I share the experience of my hon. Friend the Member for Beaconsfield (Mr. Grieve) of having worked on circuit as a barrister in my early days, appearing in criminal cases. On one day I would be the prosecutor and on the next the defender. The system meant that every barrister within an area—in my case, East Anglia—knew one another. That was important because it meant that standards of behaviour were high. It meant also that, because we had the experience day in and day out of appearing as prosecutors and defenders, we were more objective.
We were not always prosecutors, and that gave us a certain objectivity. When we were defending, we were not so defence minded as not to give sensible advice to a client. I worry about a system where there will be a criminal defender and a state prosecutor, with everyone entrenched in undertaking the same sort of work all the time. Will that provide quality and competence? Will standards be maintained?
299 There is dissatisfaction in other countries with the idea i that there is the poor man's lawyer: the state lawyer, as opposed to the private lawyer, the class act or the Rolls-Royce. We have always avoided that system. We have had a high level of representation overall, which has been provided to defendants, whatever their background, through the legal aid system. I hope that that will continue.
There are good things in the Bill, but it is a curate's egg. Given the things that are wrong with it, I intend to vote against it tonight.
§ Mr. Gerry Sutcliffe (Bradford, South)
Like my hon. Friends the Members for Great Grimsby (Mr. Mitchell) and for South Derbyshire (Mr. Todd), I am not a lawyer and I have not been involved with the legal profession. Therefore, it was with some trepidation that I decided to become involved in the debate. I am aware that many right hon. and hon. Members on both sides of the House are lawyers. However, the debate has been fascinating. Niceties have been exchanged across the Chamber. Hierarchical structures become apparent as right hon. and hon. Members refer to their professional roles. I am pleased that I have the opportunity to bring some reality to the debate.
It may surprise many in the legal profession that there is less respect for them than for politicians. Those in this place who are lawyers should beware for the future.
The Bill is vital because it will bring change. As my hon. Friend the Member for Great Grimsby said, it will bring about progress. My hon. Friend the Minister of State will not be surprised that I intend to concentrate on one aspect of it because I have seen him on numerous occasions with colleagues from many organisations who are concerned about the standards and regulation of solicitors. I have been happy to hear what has been said about the supervision of solicitors, but much more needs to be done.
I put on record my thanks to Dr. Paul Edwards, who has assisted me in providing evidence of complaints against solicitors. I have been able to highlight various concerns to my hon. Friend the Minister of State. His organisation and others have campaigned effectively on the supervision of solicitors.
The main thrust of the Bill is to improve the standard of service that is provided by the legal profession. That is vital. It is a recurring theme that the Lord Chancellor and my hon. Friend the Minister have emphasised at a number of meetings with the profession. I do not recognise the charge that was made against my hon. Friend about not consulting the legal profession. I have been present at a number of meetings in the area of Bradford that I represent where he has met representatives of the Law Society and other representatives of the legal profession. At those meetings, he has presented robustly the need for change. The case has been well received by many of the organisations representing the legal profession, even though there are concerns about exactly what needs to be done.
The attainment and maintenance of acceptable professional standards requires an effective regulation mechanism. As has been said on both sides of the House, there is concern about the regulation of solicitors. Letters have flowed, parliamentary questions have been tabled 300 and generally people have made their concerns known. The Office for the Supervision of Solicitors was intended to replace the discredited bureau dealing with complaints against solicitors. It came into existence in September 1996, when complaints against solicitors were running at about 22,000 a year. By March 1998, the figure had increased to 35,000. By February 1999, it had reached 40,000. The OSS's recent quarterly report showed that it had failed to meet most of its targets. That has led the legal services ombudsman—who happens to be a woman—to warn that she will have to report that the OSS has failed to make the necessary progress. Her report will be released in June. I was pleased to hear the Minister's comments in that regard today.
Other indicators show that all is not well with the regulation of solicitors. The Home Office has identified solicitors' involvement in legal aid immigration rackets—an issue which we discussed last month in the context of the Immigration and Asylum Bill. Home Office Ministers have warned solicitors about their involvement in such activities. The National Criminal Intelligence Service has investigated the involvement of firms of solicitors in organised crime, particularly money laundering, and there are many other factual instances of substantial wrongdoing on the part of solicitors.
Self-regulation does not work, and I am heartened by the move to give stronger powers to the legal services ombudsman. However, I am slightly confused as to how that will relate to the continuing work of the Office for the Supervision of Solicitors. I hope that the Minister will explain in more detail how that relationship will develop in future. 1 recognise that the Law Society has advanced plans for radical change, but the OSS has been discredited. I do not attack the individuals within that office who have tried to establish an MP hotline and to provide further information. However, they have suffered from a lack of funding and support.
We must also examine the work of the legal services ombudsman. The ombudsman has ignored recommendations in the past, and matters have taken a long time to reach the ombudsman. I hope that the Minister will consider tonight and in Committee the workings of those organisations that have produced many cases where people have been failed by their solicitors.
There has been no mention of the solicitors indemnity fund—I know that that issue does not relate directly to the Bill, but it affects people's confidence in solicitors—and the failings in that area. I became involved in the case of my constituent who was selling her home in order to buy a business in Scotland. Her solicitor did the conveyancing and ultimately produced a £4,000 cheque for my constituent. She thought that that sum was far in excess of the amount to which she was entitled and wrote to the solicitor about her concerns. The solicitor replied to say that the details had been checked and that she was entitled to the £4,000. My constituent took the cheque and invested it in her new business in Scotland.
Three months later, my constituent received a letter to say that there had been a mistake and that the solicitor was owed £4,000. The solicitor took the matter to the solicitors indemnity fund, which paid him the £4,000 that he was owed and then hired him to reclaim the debt from my constituent. That cannot be right, and I know of many other horrific stories like that.
301 We want to raise standards in the profession and ensure that people can have confidence in the legal system. I hope that my hon. Friends will consider those matters. As I have said, there have been numerous meetings and Ministers have listened intently to the views of Dr. Edwards and others. I hope that the Minister will provide some details about how the process will work in practice. If it does not work effectively, ordinary people will not have confidence in the legal system.
I am pleased that the community legal service is to be established. I add my support to hon. Members' comments about citizens advice bureaux and law centres. The law centre in Bradford has done excellent work over the years and supported many good causes. Community legal services enable ordinary people to have confidence in solicitors. Most people think that solicitors' services will cost them a fortune and do not wish to lodge legal aid applications because they do not understand the mysterious system.
I welcome the positive attitude that the Minister and others have displayed towards the role that trade unions and trade union schemes can play in legal matters. As an ex-trade union official, I have seen members benefit over many years from the excellent work of trade union schemes. There are many excellent trade union lawyers on this side of the House who have done some tremendous work.
Time is short and many hon. Members wish to contribute to the debate. I welcome the future development of the Office for the Supervision of Solicitors.
§ Mr. Andrew Dismore (Hendon)
I declare an interest in the debate as a solicitor who has been in practice for 20 years and specialised in personal injury work—mainly for trade unions. However, I am not taking any cases now as I do not think that I can do so practically while continuing to represent my constituents properly in this place. I was also an assessor for the Law Society specialist personal injury panel, and I remain a member of the Association of Personal Injury Lawyers executive committee. I welcome the significant reforms in the Bill, which amount to some of the biggest changes in the civil justice system for decades. Some of my former colleagues may view me as poacher and gamekeeper, but I believe that it is my job to speak not for lawyers but for my constituents and the general public.
Much of the debate so far has focused on the funding of litigation, especially personal injury cases, and I suspect has turned off many in the outside world who view it as lawyers' special pleading. As I wish to raise several other issues, I shall say very little about that. While I have some reservations about legal aid, I therefore welcome the reform of conditional fee funding—especially the requirement for unsuccessful defendants to meet the cost of success fees and insurance premiums.
Research into conditional fees was conducted recently. A survey conducted by BDO Stoy Haywood in February 1999 found that the outlook was optimistic. It revealed not just the 98 per cent. success rate of conditional fee agreements so far, but that a majority of the firms surveyed expected CFAs to be more profitable than traditional funding methods over the next three years. 302 Many of the fears within the profession are probably unjustified. The survey identified a fear factor among small firms that can be overcome with appropriate training and education.
I successfully took to the House of Lords a speculative funding case against the previous Government, and I welcome the Government's decision to end the uncertainty over speculative funding. However, I hope that they will go further and abolish entirely the arcane and outdated indemnity principle, which is nothing more than a restraint on fair competition in civil litigation. I believe that its end would undoubtedly lead to a freer market for legal services and better deals for lawyers' customers—especially bulk purchasers.
If we are serious about looking out for the interests of the public, not the lawyers, we must tackle one of the main causes of high expenditure on big cases: the Queen's Counsel system. While I welcome the transfer of costs of administering the system to the profession, that is only the start of reforming—and preferably abolishing—the QC system. It will not have escaped the Minister's notice that more than 100 Members of Parliament have signed the early-day motion calling for the abolition of that anachronistic distinction.
The QC system operates not in the public interest but at its expense. Double manning remains rife. Although the Bar claims that the title "QC" is equivalent to a certificate of excellence, everyone knows that that is nonsense. There are good, bad and indifferent QCs, just as there are good, bad and indifferent people in every profession. If it were a proper accreditation arrangement, the silk system would have transparent assessments against objective criteria rather than the old-boy network, which, despite the best endeavours of the Lord Chancellor, maintains an inherent bias on the grounds of race, gender and age. Despite the substantial change in his or her practice facing a new QC, there is no probationary period, monitoring, appraisal, continuing education requirements or complaints procedure. Many silks draw all or most of their substantial earnings from public funds, yet there are no means of judging whether the client or taxpayer gets value for money.
I suggest to my hon. Friend that if the silk system is to continue, the public sector should recognise the volume of work it gives to QCs. I suspect that more than half of the work for silks is funded through legal aid, the Crown Prosecution Service, Government agencies and Departments, the national health service or local government. With some creative thinking, the Government could use that substantial purchasing power to negotiate more realistic fee levels. We know that QCs earn up to £600,000 before they are appointed, and their earnings increase substantially after that. While some QCs give generously of their time, many do not. I do not think it is unfair to expect a QC to do some work pro bono as a requirement of appointment. That would enable some of those who are less well off and who cannot afford the services of a QC to benefit from their expertise.
If the Bar cannot accept the challenge to modernise the QC system, I hope that the Government will accept the early-day motion and abolish the system. I believe that many litigants and practitioners would welcome such a move, judging from the substantial number of supportive letters that I have received in my campaign. Those people 303 favour the ending of yet another unjustified restrictive practice that is operated by lawyers for lawyers and which is not in the public interest.
§ Mr. Dismore
Those figures have been published in answer to parliamentary questions that I have tabled.
Mr. Deputy Speaker
Order. We cannot have a conversation between two hon. Members who are both on their feet at the same time. The hon. Member for Hendon (Mr. Dismore) did not give way a second time.
§ Mr. Dismore
The issue relates not only to public funding. I suggest that the hon. and learned Gentleman reads the parliamentary questions that 1 have tabled on that issue.
The Bill provides the opportunity to consider the services provided by the central players in the legal system—the judges. The judiciary is not representative of modern society. There are almost no women in the higher echelons and no senior judges from ethnic minorities. Despite the Lord Chancellor's best efforts, judges are still predominantly drawn from the same narrow background. The judiciary is increasingly important and its powers are ever growing because of the Human Rights Act 1998, the judiciary's involvement in constitutional issues, especially after devolution, and judicial review, so the fact that judges should reflect our society also becomes more important.
The Lord Chancellor has rightly demonstrated that his policy is one of appointment on merit, and I would not for one moment suggest that judicial appointments should not be made on merit. However, I question whether the criteria against which that merit is tested and which form the basis for appointment should not also be reviewed.
The judiciary is essentially drawn from the Bar. Without change, there is little prospect of major reform of the constitution of the Bench. Why should a barrister who has spent many years in the adversarial cockpit exclusively be deemed to have the best qualifications to be an impartial judge? We should re-examine the qualifying criteria and perhaps, as Lord Borne suggested in another place, broaden the base to include chairmen of tribunals and academic lawyers. They could be monitored in the same way that part-time judges are. Let us remember that employment tribunal chairmen already often decide extremely complicated points of law and substantial compensation claims.
I agree, to some extent, with the hon. Member for Torridge and West Devon (Mr. Burnett), who spoke for the Liberal Democrats, that the time has now come for a judicial appointments commission, like those adopted in many other common-law jurisdictions, to include both lay and lawyer members to consider recruiting, screening, investigating and evaluating judicial candidates.
304 Such a commission could also be responsible for maintaining a register of pecuniary and non-pecuniary interests for the judiciary. That issue has been thrown into sharp focus by not only the Pinochet case but the recent revelations in the Sunday newspapers concerning potential financial conflicts of interest over directorships held by some judges. Two or three times in my professional experience, when acting for accident victims, I had doubts about the part-time judges trying the cases because I knew that the judges, in their ordinary jobs as barristers, drew their practice primarily from defendant insurance companies. My clients picked up my concerns and were concerned themselves about whether they had a fair trial.
The argument that we can expect judges to police themselves on outside interests is similar to the arguments that politicians used to advance, which have been rightly and firmly debunked throughout the remainder of public life. The judiciary's position should be no different. Those before the courts are entitled to the reassurance that the judge has no interest affecting the case. That would not only be good for the litigants but provide added protection for the judiciary against allegations of bias and would provide clear guidelines to judges in what is at present an uncertain area. It will not have escaped the notice of my hon. and learned Friend the Solicitor-General that more than 100 Members have signed early-day motion 456 calling for reforms along those lines.
Finally, I turn to the problems facing people who have been bereaved or severely injured as a result of serious accidents and disasters. The public inquiry system that has developed over the years is inconsistent; it leads to considerable duplication with additional expense; it creates delays leading to sometimes contradictory outcomes, and it almost always increases the suffering and distress of relatives and victims.
As the Bill proceeds into Committee, I urge my hon. Friend to consider adding provisions to deal with at least some of the system's more glaring inadequacies; for example, to empower the chair of an inquiry, who is often a judge, to act also as coroner, to avoid the need for an inquest going over the same ground.
I was involved in the legal consequences of the King's Cross fire. The 93-day public inquiry was followed by a two-week inquest, which largely covered the same ground. Inquests were also held after the full public inquiries into the Zeebrugge, Kegworth and Piper Alpha disasters and the Clapham rail crash, adding little to the public inquiry findings but much to the distress of the relatives.lb/> We could also shorten and simplify civil proceedings for compensation, and make them more certain, by allowing inquiry findings of fact to be binding in subsequent civil proceedings. We need to ensure that the possibility of criminal proceedings does not block the whole process. It is outrageous that the Marchioness families had to wait seven years, and undergo the most appallingly expensive and time-consuming esoteric legal wrangling, before they finally secured a public airing of the issues, only for the coroner's jury findings of unlawful killing to fall on deaf ears.
I very much support the Bill, but we could add to and improve it in Committee, to improve access to justice and the quality of justice and to reduce cost.
§ Mr. Paul Stinchcombe (Wellingborough)
I, too, declare at the outset my interest as a barrister. I was involved in the litigation following the Marchioness disaster, to which my hon. Friend the Member for Hendon (Mr. Dismore) referred.
Everyone in the Chamber and, I dare say, the country agrees that it is a cornerstone of any acceptable notion of freedom that all citizens should have equal access to the law and that, once before the law, all citizens should have equal treatment under it. Notwithstanding the unanimous opinion that equality before the law is a precondition of a civilised society, we have not achieved that precondition. The root cause of that failure is simple—legal services in this country have been seen by many who provide them as essentially a commercial commodity to be bought and sold in the marketplace, rather than as an indispensable facet of our human rights.
As a junior banister, I heard another junior barrister ask yet another, "How many crates of champagne can you get in the back of your Ferrari?" I heard an eminent silk complain, "The hardest £200,000 to earn every year is the £200,000 that takes you to your million." I recite those incidents not to add to past diatribes about fat cats. Like other hon. Members, I am well aware that many practitioners operate from the high street, law centres, or general common law and criminal chambers, where financial rewards are far from excessive.
I recite those incidents for the good reason that any legal system built in significant part around the financial rewards for practitioners is bound to be prey to twin dangers. The first is that access to legal services becomes the privilege of the rich rather than the right of everyone. The second is that when the state is forced to pick up the bill of those who are unable to pay, it, too, may be faced with a cost burden that is too high for the taxpayer easily to bear.
I believe that our history demonstrates those dangers to have come to pass in our jurisprudence and jurisdiction. With prices fixed by the private market, the poor and the not so poor have been largely unable to pay the costs of litigation, and the means by which Governments, during the past 50 years, have sought to meet that gap—the legal aid system, established by Labour and seen by us for many years as a vital pillar of the welfare state—has come under huge strain.
Five decades later, with legal aid still available on only a limited basis, the costs of central Government assistance have spiralled and, as my hon. Friend the Minister of State said when he introduced the Bill, we pay more, but get less.
Those are realities with which the Government must deal as they seek to achieve aims that are in tension—to enhance the access to justice of our citizens, and yet simultaneously to control the public costs by which, even on a limited basis, access has previously been provided. Unsurprisingly, faced with a problem—a dilemma—of that difficulty, which calls for radical change when radical change is inherently controversial, the Government have introduced a Bill that is controversial in part. It is a series of hard choices, the results of many of which are very good—I welcome in particular the community legal service—although some cause me greater concern.
306 I am concerned about the lack of a Government-inspired objectives clause, and look forward with great interest to the words that I hope will be penned by my right hon. and hon. Friends in due course.
I have some sympathy with the trenchant speech by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) in so far as he voiced the specific concern about whether those who are vulnerable—the disabled, and especially the young—should be forced to seek conditional fee agreement funding for their personal injury cases.
I hope that my hon. and learned Friend the Solicitor-General will reassure me on two aspects, which have not been mentioned in detail. The first concerns the failure to extend legal aid to representation before tribunals; the second concerns the funding of civil legal aid.
All hon. Members present must be well aware that tribunals have very wide and important jurisdictions. Their decisions can have grave implications for many individuals, in fields as diverse as immigration, employment and social security. It has, therefore, been of considerable concern to many that those individuals have often been denied representation.
I thought that my Government would share that concern, because they have repeatedly said that one of the aims of the current reforms of publicly funded legal services is to prioritise social welfare law. The White Paper "Modernising Justice" says that in terms. It says that among the areas given greatest priority will be "social welfare cases" because those concern "people's basic entitlements", such as their "correct social security benefits"—to which basic entitlements we can surely add basic employment and immigration rights. What better way is there to give credible support to that asserted priority than to extend legal aid representation to cases heard by such tribunals?
Some hon. Members have mentioned the lack of research to justify some of the proposals, but the Lord Chancellor's Department has undertaken research which shows that the presence of a representative at such hearings significantly increases the applicant's chances of success. We therefore have an opportunity to use the Bill, which we call a landmark Bill—rightly so in many respects—to act on that research at least, and to meet the clear need to extend legal aid to such tribunals and such cases. I ask my hon. Friends not to close the door on that possibility, but to consider it again.
That brings me to the second matter that I wish to discuss—civil legal aid, a matter mentioned by the hon. Member for Torridge and West Devon (Mr. Burnett). I previously understood the proposal to be that the civil legal aid budget would be capped. I was not overjoyed by that proposal, as it raised the prospect—at least to me—that some cases that should be funded might not be funded, but I was at least reassured that, under the cap, the civil legal aid budget would be ring-fenced from pressure being exerted on it by other spending commitments, and specifically from spending pressures via the criminal legal aid system.
The Government's White Paper, "Modernising Justice", said that the community legal service fund wouldoperate under a controlled budget—with finite resources,whereas the criminal defence service would be a separate scheme with a different budget. The White Paper said: 307Separating the two schemes in this way reflects the fact that they are responsible for providing different types of service in very different types of case; and that each scheme has its own distinct objectives and priorities.The authors of the White Paper were right to say so. However, it now seems that the community legal service fund will not be separate from the criminal scheme at all, but will be dependent and contingent upon it.
I understand that, under the current proposals, the community legal service fund could be cut in the event of an unexpected or unplanned increase in expenditure on criminal legal services. I want to know whether I am right or wrong about that. I hope that I am wrong, but I have my doubts. In another place, my right hon. and noble Friend the Lord Chancellor—who, incidentally, was head of my first chambers—said:the only money that is left for civil legal aid is what is left over out of that budget after the requirements of criminal legal aid have been met".—[Official Report, House of Lords, 26 January 1999; Vol. 596, c. 918.]Let me say to Ministers that, if that is the case, it is a cause of real concern to me and, I suspect, to many others. It is a step beyond the capping of the civil legal aid budget—which worried some of us in any event—and it will mean that the civil legal aid budget will not be ring-fenced at all. It could mean that the criminal legal aid budget could squeeze out the civil legal aid budget altogether—especially given that the criminal budget is already growing faster than the civil budget, and will grow faster still when the Human Rights Act 1998 is in force.
I do not view that prospect very kindly, and it gives rise to a number of important questions. If expenditure on criminal legal aid was unexpectedly high, might the Lord Chancellor be forced to rule that certain types of civil litigation would no longer be eligible for legal aid? Is it possible that contracts issued for civil legal work could be terminated suddenly, or will significant funds be kept in reserve to prevent those fears from being realised? I hope so.
I ask for reassurance because otherwise, through what is a good Bill—a Bill entitled the Access to Justice Bill—we shall risk achieving the opposite of what we want.
§ Mr. David Kidney (Stafford)
Before I became a Member of Parliament at the last general election, I was a solicitor in a private practice on the high street in Stafford, dealing with a fair amount of legal aid work. Not long after I came here, I first heard the cry of an hon. Member—oft repeated since—that there are too many lawyers in this place. Perhaps it is my legal background, but I am a bit suspicious of such sweeping generalisations, so I went off to find out the facts.
The three main parties in the current Parliament contain 64 lawyers. I do not know whether hon. Members think that that is too many or too few. There are 36 barristers and 28 solicitors. Since 1983, when there were 104 lawyers in Parliament, the number of both barristers and solicitors has fallen consistently at every election.
§ Fiona Mactaggart (Slough)
Am I not right in thinking that my hon. Friend is counting only lawyers who practise professionally, and that there are some 80 legally qualified 308 Members, including law lecturers and the like? Are not lawyers represented on a greater scale than any other profession?
§ Mr. Kidney
I do not want to spend too much time discussing the composition of the House, but the figures that I have given, relating to the stated occupations of Members, come from the House of Commons Library and, in the case of earlier years, from research by Butler Election Studies. There are far more teachers and lecturers in the House—and the biggest group of all is made up of those whom some people nowadays sneeringly call professional politicians.
All that is beside the point, however. Let me finish declaring my interest. As soon as I was elected, I stopped being a solicitor in my high street practice, believing that all my attention was required for this job—a belief that experience proved to be justified. The legal paperwork relating to my retirement has not been completed—why are these lawyers so slow?—and I technically still have an interest, including part-ownership of the buildings from which my practice worked. On the letterhead, I am now described as a non-practising consultant. However, I have done all I can to distance myself.
Having said that, I want to defend lawyers from the other sweeping statement that is often made in the House: the one about fat cats. Of course there are some exceptionally well-paid lawyers. Some may be excessively well paid, but great talent attracts high pay, and in some cases, the demonstration of that talent is underpinned by the hard work that people have undertaken to get where they are. Overwhelmingly, in my view, and notwithstanding what my hon. Friend the Member for Bradford, South (Mr. Sutcliffe) said about the examples of lawyers who have gone wrong, the legal profession is filled with hard-working, dedicated and extraordinarily honest people, most of whom are not extremely well paid.
Figures given to me by the Law Society for 1997 show that the salary of a fully qualified lawyer in a firm deriving more than a quarter of its earnings from legal aid work is about £20,000 a year—a third less than that of an equally experienced lawyer in a firm doing no legal aid work at all. A salaried partner with 15 years' experience could expect to receive in gross pay less than the salary of a Member of the House of Commons.
In that connection, I draw attention to a letter that I received from a practising solicitor in Stoke-on-Trent. He read the comments that I made in an article in The Lawyer, in which I stated light-heartedly that many Members of Parliament do not like lawyers and think that they are extremely wealthy. He asked me to inform my colleagues in the House that the average family solicitor in the provinces works just as hard as, if not harder than, the average Member of Parliament, and probably earns considerably less.
In the brief time available, I shall make three points. The first has been covered by many other speakers—legal aid for personal injury cases. The second, which has been touched on by one or two other hon. Members, is the use of contracting for legal service provision. The third has just been mentioned by my hon. Friend the Member for Wellingborough (Mr. Stinchcombe)—the ring-fencing of funds for civil legal aid.
On legal aid for personal injury cases, there has been a substantial growth in the use of conditional fee agreements since they were first made legal in 1995. 309 Now they are to cover all personal injury cases except medical negligence. The Bill makes the success fee and the premium recoverable, and allows the paying party to challenge the level of the success fee.
All those are positive steps, but many hon. Members have been right to voice their concerns, and I add mine, about the danger that although the use of conditional fee agreements may extend access to justice to many people who were no longer eligible for legal aid, we may be letting people fall out at the bottom, if those who were certainly eligible to receive legal aid will now not receive it.
I draw attention to the explanatory notes that accompany the Bill, especially paragraph 74, which states thatthe Lord Chancellor may direct that for personal injury cases … funding should …be possible where exceptionally high investigative or overall costs are likely to be necessary, or where issues of wider public interest are involved.A direction can also be issued that, on the recommendation of the commission, an individual case should receive legal aid. Hon. Members are seeking an assurance from Ministers that people who, for whatever reason, cannot access a conditional fee agreement will have access to legal aid instead.
Since 1995, 60,000 policies have been issued to cover after-the-event insurance allied to conditional fee agreements. To show the willingness of the Law Society and its members to co-operate in the use of conditional fee agreements and after-the-event insurance, five out of six of those policies are written by the accident line protect scheme set up jointly by the Law Society and Abbey Legal Protection. I believe that after-the-event insurance will grow and will be reliable, but hon. Members want an assurance that, at the beginning, legal aid will be the safety net.
Secondly, on contracting for solicitors' legal services, it is right that we should insist on quality standards from those receiving public money to deliver legal services. The current Legal Aid Board standards relate to franchising, but there is no reason why they should be set in stone. The kite marking of the quality standard might change over time. More than 2,000 firms of solicitors are already franchised, and another 2,000 firms have applied to be franchised.
Contracting will give the commission control over quality and cost, but it also has other responsibilities, such as ensuring that there is a national service that is accessible to all and that people have a reasonable choice of lawyers to carry out work for them. The Government are aware that some groups have special needs, such as people in rural or sparsely populated areas and ethnic minorities. I would hate legal aid deserts to develop where there is no access to legal aid through a solicitor's firm. However, I accept that the community legal service goes wider than delivering services through firms of solicitors. Others have referred to the patchy service from law centres. Staffordshire has a population of 1 million, but it has no law centre. Happily, the citizens advice bureaux are excellent and there is good co-operation in Stafford between them and solicitors in private practice, even to the extent of solicitors giving their time freely by rota to give legal advice to those who go to the citizens advice bureaux.
310 I do not agree with those who have argued for ring-fencing of advocacy money. However, we should consider the possibility of the expense on criminal case support exhausting the legal services budget, leaving no money for civil cases. It is right that criminal defence should come first and that it should continue to be demand led, so we must accept the possibility of an overspend on criminal defence work that could eat into the civil work budget. It is pretty far-fetched to suggest that that could exhaust the community legal service budget.
Table 1B on page 70 of the excellent research paper produced by the House of Commons Library shows the expenditure year by year on civil and criminal legal aid. At 1997-98 prices, the total amount spent on civil legal aid in each of the six years since 1992 has exceeded the total spent on criminal legal aid in magistrates courts and Crown courts put together. Admittedly, there is a bit more expense on duty solicitor schemes, which are exclusively criminal work. Including that in the figures means that the total for civil legal aid is higher in four years out of six. It is far-fetched to suggest that the criminal budget will become so high overnight that it will eat up the civil budget. The ability to have more accurate forecasting and financial planning through contracting also reduces the risk of a surprise overspend in the criminal defence budget.
My hon. and learned Friend the Solicitor-General may confirm that the Lord Chancellor's Department will maintain a contingency budget. Even the Treasury in its new public service agreements expects all Departments with their own budget to have a contingency budget. If the House sees a looming problem of the spending on criminal legal work exceeding the expected amount by more than is desirable, it will be up to us to put pressure on the Lord Chancellor's Department and the Treasury, which holds the purse strings.
My impression from the pitifully few contributions by the Conservatives—truly this debate drives home the point that Labour is the party of law and order—is that they agree that our legal aid scheme, established in 1949, is admirable, but that, over time, it has not kept up with demands. The problems of growing expenditure have been met by a damping down of eligibility and by increasing the contributions that people have to make to their cases. Overwhelmingly, legal aid is available to the very poor only. The only other people who have access to justice are the very wealthy, who can afford to pay privately for a lawyer. The Conservatives appear to accept that something must be done and the final message that I take from their contributions is thank goodness that Labour has to do something about it rather than them, because the job is so difficult.
I recognise that the Government have a difficult job to do. They have my support as long as they listen to the concerns that have been voiced in the House and try to meet them. I have seen the consultation that has already taken place. Ministers have listened to that consultation and made changes to their plans as a result, so I have every confidence that we shall end up with an Act that will be as good for the next 50 years as the Legal Aid and Advice Act 1949 was for 50 years.
§ 9 pm
§ Mr. Keith Darvill (Upminster)
I declare an interest. I am a solicitor and a partner in a firm of solicitors. I was admitted to the roll of solicitors in January 1982 and I am 311 a member of the Law Society. I note the figures that my hon. Friend the Member for Stafford (Mr. Kidney) quoted about the number of solicitors in the House. In many ways, it is a pity that not more non-solicitors and lawyers are here to take part in the debate.
I have practised in a medium in-house legal department, in a medium private general practice and, for a short time, as a self-practitioner, so I have a spread of experience in the sector. Some of the provisions of the Bill are, as the White Paper, "Modernising Justice" says, challenging to the legal profession. The profession must adapt to a modern and rapidly changing society to provide a better service and better justice for the public.
In many ways, the profession is already doing that. The question is: has it done enough and can it do more without prejudicing the fundamental right of access to justice? It can do more without prejudicing individual rights, provided that the Bill is implemented sensitively and sensibly.
I make the broad general point that access to justice needs reform. The need for change is undeniable. The legal aid system is more than 50 years old. During those 50 years, society has changed. Requirements for legal services have changed and, most relevant to the Bill, changes have been made to legal aid eligibility.
As the ever useful House of Commons Library research paper shows, spending on civil legal aid increased over the years. By 1997–98, 54 per cent. of net legal aid spending—£634 million out of £1,177 million—was on civil, certificated legal aid. However, today, such legal aid accounts for less than 10 per cent. of the number of acts of assistance that are paid for. The reduction of certificated legal aid litigants is due mainly to the previous Government's policy of reducing eligibility.
I broadly welcome the Bill. I have my reservations about some aspects of it, yet a good framework is proposed, which can be built on to establish more comprehensive provision of legal services to enhance and to expand access to justice.
To a certain extent, the provision of public legal services is like that of health services: it will never be possible to provide for all the population's needs; in fact, it has never has been possible. In terms of short, medium and long-term planning, we should all come to terms with that fact. The services are, to a large extent, provided for defence in criminal prosecutions because of the threat to the individual's freedom following conviction, but they are also desirable in social areas, which the Minister and other hon. Members have outlined. Coming to terms with that state of affairs is part of the reason for the Bill.
The hon. Member for Beaconsfield (Mr. Grieve) touched on the matter and I agree with him. When I started to practise 20 years ago, private practice in local areas cross-subsidised legal services. For many reasons, that cross-subsidisation has changed. In the early days when I practised, non-contentious work was still based on scale fees. Those fees have been abolished. The economic realities of practice are that conveyancing work, for example, which in certain practices subsidised other civil litigation work, has reduced.
Consumers benefited in that conveyancing fees were reduced, but the number of solicitors practising, and covering litigation in particular, decreased as a result. Indeed, in other areas, the market price for such services has driven down that potential. In some ways, that is sad, but that is unlikely ever to come back.
312 At the same time, there has been a massive expansion in civil legal aid, particularly in the divorce and matrimonial breakdown sector.
I turn to the detailed provisions of the Bill. I shall begin with some comments about the community legal service, which in my view is the jewel in the crown. I warmly welcome the establishment of a community legal service, which will be the best feature of the Bill provided that funding is ensured, particularly early on. It will enable an expansion in the provision of advice and assistance to those in need of legal services for social welfare-related problems.
I have worked with my local citizens advice bureau, which warmly welcomes the general concept. Voluntary services in law centres and elsewhere do an excellent job and the Bill will enhance their role as a result of the community legal service, regional planning and the block contract. It will make a real difference.
The White Paper contains some interesting statistics about citizens advice bureaux around the country. There are 700 main CABs, 1,759 outlets, 800 independent centres and 53 law centres costing a total of £150 million. They represent excellent value for money.
The Bill will also provide the opportunity to refocus legal aid spending, particularly in respect of welfare law, housing benefit and tribunals and enable more money to be targeted on the non-profit sector. In my view, the community legal service should be set up in tandem with the other reforms. The reforms are so fundamental that, as a quid pro quo as it were, the community legal service should be implemented at the same time. There may be winners and losers, but the winners will be the less well-off and those who are unable to make other provision for legal expenses.
There is also another positive angle. The community legal service could develop a legal health check. Health insurance, car insurance and holiday insurance often include legal cover. Many households do not realise that they have cover for legal expenses. It would be useful for everyone to be able to have a legal health check. Such a scheme could be developed with the profession and with the insurance industry. It would plug many of the holes in provision that hon. Members have mentioned.
I am concerned about the possible effects of the proposal on the civil budget in the absence of the CLS, particularly if the block contracting that is envisaged does not cover the whole country. We need to ensure that the Bill provides adequate cover. In some areas, there may not be many practices or sufficient cover in the voluntary sector. If there is patchy cover, some citizens may suffer as a result.
I should like to make two more points before concluding my speech. The first relates to contracting. I can see the benefits of that in ensuring best value for the taxpayer. Although I am not arguing for the profession, if there is insufficient cover there will be difficulties. Solicitors' practices will need to invest in the provision of services and if there are limited contracts they may be unable to finance the necessary investment in premises, staff and so on. Some attempt must be made in the implementation of contracts to ensure smooth delivery of services.
I should say that I am no great supporter of conditional fees. In many ways, I have been a purist on the subject. However, I have come to accept them, although I do so 313 with reservations. My reservations do not stem from the Bill, but from my experience in advice surgeries. Essentially because of lower eligibility levels, my constituents who come to see me in my advice surgeries support the idea of being able to use no win, no fee arrangements in pursuing their cases. There is popular demand for such arrangements. The House should therefore ensure that the Bill deals with the reservations about the arrangements that have been expressed in this debate.
I agree with the Law Society that, for conditional fee arrangements to succeed, the insurance industry will have to play its role in providing products that complement the concept. There is evidence, which I welcome, that that is starting to happen. However, the market will have to develop further in the light of experience.
I believe that the Government's proposals in the Bill will increase access to justice by making it easier for people to afford legal services, particularly with conditional fee agreements, and by providing funding for people who cannot afford to pay privately, thereby securing value for taxpayers' money and targeting available resources on the areas of greatest need and highest priority.
I therefore support the Bill and oppose the Opposition's amendment.
§ Mr. Gareth Thomas (Clwyd, West)
At least two other Labour Members are anxious to speak in the debate, so I shall simply make some very brief comments.
I declare an interest as a member of the Bar, and welcome the Bill. It is not a cost-cutting Bill, but a Bill which will control the spending of public money. The Government should not have to apologise for the need to refocus public money, to ensure that it is properly spent and put to good use where it is sorely needed. I welcome the fact that the Government have embarked on a programme of re-orienting the legal aid system, so that public money goes where it is needed—on matters such as welfare rights, housing rights and other vital community-based rights.
Various speakers in the debate have made much of the fact that the Bill will remove legal aid for personal injury cases. I do not accept that that is a fatal flaw in the Bill. I believe that it is entirely realistic to expect conditional fee agreements to take over the role now played by legal aid. Although there is concern about that aspect of the Bill, equally, there has been concern about abuse of legal aid certificates. The sometimes very large contribution that litigants find attached to their legal aid certificates, and the issue of eligibility, are problems. There is also a problem with how to manage the legal aid system. The only solution offered by Conservative Members is further cuts in eligibility, which surely is not in the public interest.
I was impressed by the speech made by my right hon. Friend the Member for Llanelli (Mr. Davies). I, too, am uneasy about some aspects of the criminal defence service. I note that, in the other place, the Lord Chancellor attempted to allay such concerns by stating that the Government's intention was simply to use that service to fill in the gaps and to introduce some flexibility, and that 314 the Government's intention was to use independent private practitioners to do the bulk of criminal defence work. I should like the Government to give further assurances on that matter, as important constitutional principles are at stake.
It is right that the profession should shoulder more of the burdens and risks of litigation. Money should be properly redirected and focused.
I should like to hear more about how the community legal service will be established. I should like the Minister, in his reply, to say when the CLS will be established and how it will be funded. I should also like some assurances—as would other hon. Members—about how the civil legal aid budget will be protected as a consequence of the fact that, in many respects, it will have to be secondary to the criminal legal aid system. 1 should like some form of objects clause to be entrenched in the Bill. The Bill gives considerable discretion to the Lord Chancellor, and it is right and proper that the manner in which that discretion is exercised is limited and directed in the context of an objects clause.
I am conscious that time is passing. I welcome the Bill, which surely will improve access to justice.
§ Ms Hazel Blears (Salford)
In the few minutes that are left to me, I wish to make a few points. Whatever the hon. and learned Member for Harborough (Mr. Gamier) may have said at the outset about Orwellian language, it seems to me that the Bill is a huge step forward in increasing access to justice and equality. No doubt some will remain more equal than others; the rich and powerful have always had the advantage in our legal system. The more we as a Government can do to redress the balance and to improve access to justice for some of the poorer people in our communities, the better.
The Bill is particularly relevant to people who live in communities such as mine in the inner cities. Not only are those people on low incomes but, in many cases, they are frightened of going to law. They are reluctant to enter a solicitor's office, which is a foreign world to them. They do not know the liabilities that they will incur. By creating the community legal service, we will open up the law to people who traditionally have been denied access. On that basis, I welcome the Bill.
I declare an interest as a non-practising solicitor. However, that is a minority interest this evening, because my overriding interest is that of my constituents who, at long last, will have the access to justice that has been denied them for so many years.
The Bill has been vociferously attacked, mainly by lawyers—some of whom have not liked the prospect of losing access to a fairly lucrative income stream. However, some have gone wildly over the top and have caricatured the Bill as an attack on the welfare state. Nothing could be further from the truth.
The constituents whom I represent do not want expensive court-based solutions; they want good, quick and accurate advice. They want conciliation services, mediation and representation. They would like the legal problems not to occur in the first place, and they would like not be subject to an undue balance of power which means that they find it difficult to get redress.
I do not know how much time the hon. and learned Member for Harborough has spent in inner-city advice agencies. If does spend time there, he will find that they 315 are run on a shoestring, and that they are full of hard-pressed staff who are struggling to cope. There are poor facilities, run-down buildings and difficult access for disabled people. The community legal service will improve all that, so that our advice agencies—at long last—are run in a reasonable manner so that people have dignity and equal access.
We are proud of the legal aid system in this country, which has helped millions of people to obtain redress. However, in recent years, eligibility has been slashed, and the number of people assisted has fallen by 100,000 in the past five years. Under successive Tory Governments, the eligibility rules were squeezed so much that the system now can hardly be described as universal; in fact, less than a quarter of people are entitled to free representation. The service is struggling, and needs fundamental and radical reform.
The Bill is not about cutting costs, but about shifting priorities. There will be a sea-change in the way in which we organise the legal service in this country. The Bill is about making the priorities housing, debt, welfare, employment and consumer issues—the crucial matters to my constituents. We are shifting the focus from money claims and negligence to matters such as whether a person has access to work, a roof over his head, personal security and freedom from crushing and crippling debt. These are the important issues to the people whom I represent, and the Bill will shift the focus of public expenditure to those areas.
The Bill will make sure that we get value for money from our public expenditure. Why should public money be used to pursue cases that are not good enough to be funded privately? If there is a good case, it should be pursued, whether privately or publicly funded. The case against conditional fee agreements is not well made.
By introducing the community legal service, the Bill will give access to justice to many of my constituents who have been denied it for years. I hope that my hon. and learned Friend the Solicitor-General takes into account the point that I made earlier—that access to justice must be local. Salford needs its own magistrates court. It is a different place from Manchester and, unfortunately, we have enough crime in Salford to fill our courts. I want to ensure that our city retains local access to justice. The magistrates are part of our community and they must be involved in the partnership to tackle crime and disorder and deliver justice locally.
Provided that Ministers listen to that plea, I welcome the Bill and urge hon. Members to vote for it. I wish it godspeed.
§ Sir Nicholas Lyell (North-East Bedfordshire)
It is a real pleasure to see love in the House. I saw the Minister looking into the eyes of the hon. Member for Salford (Ms Blears). After a long and weary debate—a very good one, in fact—he had at long last found an admirer, and he admired her in return. If only the world were as she thinks it.
I, too, declare an interest, as I have been a barrister for 34 years. There have been many good speeches in the debate, from both Government and Opposition Members. The contribution of the hon. Member for Salford was doubly welcome to the Minister, because she will have noticed, as will everyone else who has sat through this 316 debate, that it was not until the ninth speaker rose that a single person other than the Minister spoke in favour of the Bill.
That ninth speaker turned out to be the Parliamentary Private Secretary to the Law Officers and to the Solicitor-General, who is to wind up the debate. We were delighted to hear from him. I was PPS to the Law Officers for a long time, and I did not speak in debates in which my Minister was speaking, but it is interesting to see how the conventions change, and it is always a pleasure to hear the hon. Member for Leicester, East (Mr. Vaz).
The problem with the Bill is not what it claims to be about but what it is likely to do in practice to our system of justice. If it were genuinely likely to increase access to justice, it would have our support but, in too many ways, as many Government and Opposition Members have said in thoughtful speeches, it does no such thing. Its title is a good example not of George Orwell's some being "more equal than others" but of his "Doublespeak".
Let us consider the Lord Chancellor's proposals for legal aid. We can give one cheer for the setting up of the Legal Services Commission and the community legal service. There is a case for an overall body to examine and co-ordinate the provision of legal services. If and when we are permitted some detail on what those two bodies are expected to do—a fair point made by the hon. Member for Upminster (Mr. Darvill)—we shall hope to be able to give them our support.
Let us be clear that neither body will itself provide any legal services. Those will continue to be provided by barristers and solicitors; by law centres, whether funded by Government or by local authorities; by trade unions; and by the substantial network of voluntary services, including in particular the citizens advice bureaux.
Some better co-ordination and some switch of funding will have merit, but there are serious questions about the provision of practical legal services to those currently obtaining civil legal aid, and especially those who have suffered personal injury. I tried earlier to attract the attention of the hon. Member for Salford, to say that, in summary, it is likely that the removal of civil legal aid from personal injury cases will leave a wide tranche of the more difficult, but none the less deserving, cases unprovided for. Solicitors and barristers will be unwilling to take on the risks, and the unfortunate victims will often be unable to afford the legal fees insurance necessary to cover the risk of having to pay the other side's costs, and they will be left unrepresented.
I do not invite the Solicitor-General to listen only to me on this matter. Let him listen to the hon. and learned Member for Medway (Mr. Marshall-Andrews), who is known for speaking his mind and has done so on this occasion on a matter on which he knows what he is talking about. Let him listen also to the hon. Member for South Derbyshire (Mr. Todd), who is not a lawyer but who, as a non-professional, made a very thoughtful and knowledgeable speech expressing exactly the same concern: a concern also voiced by many others.
The Lord Chancellor's idea is that the vast majority—indeed all deserving accident victims—will easily sign up to no win, no fee agreements. However, I draw on many noble and learned speakers from the other place, including many highly respected, public names on the Labour side, who have pointed out that, in practice, it is highly likely that only those cases that are near certain winners will obtain conditional fee agreements.
317 What about the increased costs? The second disadvantage of the system is that the lawyers representing a successful litigant are then entitled to an uplift of as much as 100 per cent. on top of their existing fees. The likely result is that access to justice will go down and the costs of justice will go up. Nor is a significant amount likely to be saved by that policy. Under the present legal aid system, the net cost of personal injury cases to the public purse is between only about £34 million and £37 million a year, plus a certain amount of the administration costs. It has been said that the amount is about £60 million, but it is unclear whether anything like that would be saved. We would agree that the money would be worth saving if a genuinely better system could be achieved, but that £37 million represents only a small percentage of the personal injury cases that receive legal aid. The vast majority of personal injury cases succeed and the Minister knows it; when the current Lord Chancellor was in opposition, he used the figure of 91 per cent. The policy has not been properly thought through.
§ Sir Nicholas Lyell
The hon. Lady shakes her head, but she does not understand.
In that context, I ask the Minister to clarify a statement made by the Lord Chancellor in The House Magazine of 15 March. In his beguiling but, I fear, misleading article, he statedcivil legal aid now costs the tax payer £800 million a year in lawyers fees.Could he please explain how that is made up? Presumably, it is not personal injury fees, as all but £34 million—or £37 million—are recovered. Does it refer to fees paid, for example, on judicial review cases? Does it include matrimonial cases or children's cases—which, as a result of the extended opportunity presented by us, constitute about 25 per cent. of those civil cases? If it does include all those matters, as I think that it does, are they no longer to receive support from legal aid? The notion that that money is there to be switched is a chimera; it is a fantasy. I should like the Minister to address that subject, because, if that money were taken away from those deserving causes, access to justice would be further reduced.
As we are dealing with standards, I interpose a small but important point in respect of the scrivener notaries, who provide a highly specialised service in the City of London. They accept that their monopoly will be abolished. I see that the Minister is puckering up his face. If he listens for a moment, he will realise that I am making not a party political point but a serious point.
The scrivener notaries provide a highly specialised service of a high standard in the City. After the abolition of their monopoly, they are concerned that the public should be aware, when they consult ordinary notaries—who have their purposes and functions—that they are not receiving the same experience and expertise that is provided by the scrivener notaries. That point will have to be dealt with in Committee, but I give notice of it. My hon. and learned Friend the Member for Harborough (Mr. Gamier) will follow it through. It merits careful thought.
318 My next question seeks clarification about the community legal service. As we know, the Lord Chancellor says that that servicelies at the heart of the Billand will providea comprehensive network of legal advice points across England and Walesto the disadvantaged. If it does so, that is laudable, but at present there is a complete absence of detailed costings or of any detailed description of how that is to be achieved. That point has been made from both sides of the House.
I have mentioned the £800 million, but it is not in place to be transferred. I fear that talk about the community legal service is another example of Government policy that is magnificent in aspiration but barren in execution. At best, it will provide a limited enhancement of services for one group of poor people at the expense of another, the future tranche of unfunded personal injury victims.
§ Ms Blears
The right hon. and learned Gentleman has admitted that approximately £40 million could be saved from transferring personal injury cases to conditional fee agreements. Does he accept that that money could fund something like 200 to 300 law centres, dramatically improving legal services for people in deprived communities?
§ Sir Nicholas Lyell
It would fund a lot of law centres if matters were as easy as that. However, the £40 million comes from the margin of between 5 and 10 per cent.—9 per cent. in the Lord Chancellor's view when he was in opposition—of cases. The hon. Lady started her professional life as a solicitor and she will know that to expect to be accurate in 90 per cent. of cases is to go beyond the bounds of credibility. I can see that reflected in the eye of every lawyer in the Chamber. We cannot have a system in which the funding is as accurate as that.
Labour Members should remember that it is not only Conservatives who are critical of these ill-thought-out and flawed proposals. As I listened to the hon. Lady's speech, a recent letter to The Times came to mind. A very experienced solicitor whose name will be known to all lawyers—Mr. Benedict Birnberg—expressed the strongest reservations about this aspect of the Bill. We shall press in Committee and on Report for answers to our continually unanswered questions.
On legal fees insurance, the Government rightly recognise that their plans for no win, no fee agreements will be in tatters until effective and affordable products are available to provide legal fees insurance for those whose cases are not successful. To date, adequate products simply have not been forthcoming. The Minister may frown at that, but, in February, Abbey Legal Protection suspended 30 firms from the Law Society's accident line scheme, which it runs. The managing director said thatthey are entitled to go elsewhere—but they can forget premiums of £95 to £120.The Lord Chancellor's Department has mentioned 10 providers, but it turns out that they are mainly brokers, not companies, and the price of their products is either unclear or prohibitive. I tabled a parliamentary question to the Minister of State asking for more details of insurance products available and the conditional fee agreements. What I received by way of reply was not up to the hon. Gentleman's usual standard. He said: 319Insurance products to support the use of conditional fees are coming into the market regularly. I doubt that a comprehensive list of products exists or can be put together, given the vibrant and expanding nature of this market."—[Official Report, 30 March 1999; Vol. 328, c. 610]I have tabled a supplementary asking him to publish such details as are available to him. If the Solicitor-General cannot tell us—I do not expect him to—I shall look forward to the Minister's answer with great interest.
What is to be the ambit of the criminal defence service, and to what extent will the Crown Prosecution Service be able to appear in the Crown courts? That is a matter of concern to many hon. Members, including the right hon. Member for Llanelli (Mr. Davies), the hon. and learned Member for Medway the hon. Member for Torridge and West Devon (Mr. Burnett) and my hon. Friends the Members for Surrey Heath (Mr. Hawkins) and for Solihull (Mr. Taylor).
We are worried because we have had no details. There has been some backtracking, but little forward explanation. Lack of detail and lack of coherent quality control on these issues led to the House of Lords voting down the Government' s proposals. Before the Government seek to steamroller them through this House, can the Solicitor-General or the Minister tell us how the criminal defence service is expected to work? How much funding will be applied to it, and how many lawyers are to be employed? We have little detail; the Government are asking for a blank cheque.
The Bar Council has described the American experience of public defenders as "chilling", and there is little evidence that the introduction of such a body in Britain would be in the public interest, or save money—except to the detriment of justice.
§ Mr. Hoon
The right hon. and learned Gentleman mentioned a point of detail, but he has much greater experience of this place than I do, and he knows that Second Readings are about principles. Will he tell us whether, in principle, he opposes the idea of there being provision to employ public defenders? What is his position in principle?
§ Sir Nicholas Lyell
I shall not say, because the scheme is so vague. In a sense, the duty solicitor scheme is fairly close to a very simple form of such an arrangement. That is about as far as the Lord Chancellor has tiptoed—and I am in favour of the duty solicitor scheme, so there are some aspects of which I might be in favour.
However, I remind the Minister that he has now been in government for two years, and the Lord Chancellor has been pontificating about such subjects all that time. If the two of them cannot come up with a bit of detail after two years, they do not know their business. That is what worries the House.
If, as the Lord Chancellor has said, defendants would still be entitled to seek their own independent lawyer funded by legal aid, the system is unlikely to have much take-up. However, if it is Hobson's choice—public defender or nothing, with salaried Crown prosecutors also prosecuting cases—there must be a real risk, which has been recognised by Labour as well as by Conservative 320 Members, of hard-pressed state prosecutors getting together with equally hard-pressed state defenders and making plea bargains for the easy disposal of their cases.
§ Sir Nicholas Lyell
Just a moment.
That carries all the known risks of people being let off too lightly for serious crimes while others are bullied into pleading guilty to a less serious charge of which they are innocent, for fear of something worse if the case proceeds.
§ Sir Nicholas Lyell
I would, but I have only three minutes left. I apologise to the hon. and learned Lady.
As 1 have said, in the Bill the Lord Chancellor is asking for a legislative blank cheque from start to finish. We welcome the fact that in the other place it was accepted that some of his direction-giving powers should be exercised only by statutory instrument, but the fact remains that we know little of the detail of the Legal Services Commission and little of the degree to which a salaried Crown Prosecution Service will take over Crown court work. Moreover, there is almost complete vagueness on the subject of the criminal defence service.
I must mention the constitutional point, but, because of lack of time, I shall summarise it briefly. As the House knows, the background is that, until 1991, the professions of barrister and solicitor were independent and self-governing, subject only, in the case of solicitors, to the statutory framework of the Solicitors Act 1974.
Under the Courts and Legal Services Act 1990, lawyers came under the aegis of the Lord Chancellor, but he had to carry with him all four of the designated judges. That was going a little too far. We accept that the ACLEC system—the system involving the Advisory Committee on Legal Education and Conduct—was a little too stultifying, and we probably would have made some modifications in that direction ourselves.
However, things are now going too far the other way. The Lord Chancellor should at least be prepared to share his power with the four senior judges. If he cannot carry at least two of them with him he should not have his way. The control of independent professions by a Government is not a model for a free society.
In summary, the House will readily understand our reasoned amendment, although the Minister of State seems not to. I am grateful for the Liberal Democrats' support for it. The Bill reduces access to justice, increases the cost of justice, reduces the rights of citizens to an effective defence and gives the Lord Chancellor excessive powers over the independent legal professions. We await the answers from the Solicitor-General, but, unless he can show a genuine willingness by the Government to listen and to think again, we shall press our points home in the Division Lobby.
§ The Solicitor-General (Mr. Ross Cranston)
The right hon. and learned Member for North-East Bedfordshire (Sir N. Lyell) started by saying that this has been a good debate. I agree. My hon. Friends participated 321 fully and vigorously and made many good points. Initially, we were disappointed because it looked as though the main Opposition party would field only two Back Benchers, but the hon. Member for Solihull (Mr. Taylor) was provoked into contributing, which we welcomed. We also had the benefit of hearing another talking Whip.
Hon. Members of all parties acknowledged that change was necessary, so let me first try to address the puzzle that the main Opposition party is going to vote against the Bill. One reason given was the lack of consultation. My hon. Friends the Members for Bradford, South (Mr. Sutcliffe) and for Stafford (Mr. Kidney) nailed that one by mentioning the extensive consultation. The White Paper proposals resulted from 20 consultation papers and 12 research and pilot projects.
The Opposition then focused their fire on conditional fees. Our changes to the concept of conditional fees increase access to justice by making the success fee and insurance premiums in no win, no fee cases recoverable from the losing party. That means that conditional fee agreements will be suitable for non-money and small money claims and that people of moderate, and even very small, means can use them without fear of having to face the uplift out of their own pockets or out of modest damages. On the extension of conditional fees, this will release legal aid money and allow us to concentrate it on the priority needs of less-well-off people in areas where private funding does not extend and to cases that raise matters of public interest.
It is true that the Bill generally excludes legal aid from certain cases. Boundary disputes were raised by the hon. Member for Beaconsfield (Mr. Grieve). We have to prioritise and choose some cases over others. Generally speaking, we think that boundary disputes do not justify public expenditure. That contrasts with the previous Government, who, when they came under spending pressure, simply tightened financial eligibility across the board, a point made by my hon. Friend the Member for Upminster (Mr. Darvill). The result was that a raft of people were excluded from legal assistance.
§ Mr. Hawkins
The Solicitor-General is giving the impression that the only attacks on the Government's proposals came from Opposition Members. What about the savage criticisms of Labour supporters in another place that I and others mentioned? In this debate, Labour Members, such as the hon. and learned Member for Medway (Mr. Marshall-Andrews), made similarly savagely criticisms of parts of the Bill. When will the Solicitor-General recognise that he is being attacked from behind as well?
§ The Solicitor-General
On the whole, my hon. Friends welcome the Bill. I will come to some of the points raised. I hope that I am addressing some of their concerns.
Let me make a further point about conditional fees in relation to uplift. Under our proposals, the uplift will be recoverable from the losing party. That means that losing parties will be much more willing to challenge the level of uplift than are successful parties at present. That will 322 put downward pressure on uplifts. My hon. and learned Friend the Member for Edinburgh, Pentlands (Dr. Clark) made the point that there is also control through taxation.
§ Mr. Garnier
We shall not get to uplifts unless there is insurance available to underpin conditional fee agreements to start with. Where is that coming from?
§ The Solicitor-General
I shall make the insurance point in relation to personal injury. As my hon. Friend the Minister of State said, the evidence is that insurers are coming forward. We hope that insurance will further develop. My hon. Friend the Member for Upminster mentioned insurance for a legal health check, and that would be welcome. Conditional fee agreements are taking off. There have been more than 50,000 claims taken with CFAs. The prophecies that they will not take off have not come to pass.
My hon. Friend the Member for Stafford spotted that the Bill contains a general power for the Lord Chancellor to make directions to allow some funding of personal injury. That being so, personal injury is not excluded from legal aid. The present intention is to use that power where the profile of a case may make it unsuitable for a particular arrangement, especially a case that has a high investigative or overall cost, or a wider public interest. That might cover the sort of cases raised by my hon. and learned Friend the Member for Medway and my hon. Friend the Member for South Derbyshire (Mr. Todd).
My hon. and learned Friend the Member for Medway and the hon. Member for Surrey Heath (Mr. Hawkins), in quoting his solicitor constituent, made a point in favour of CFAs when they spoke about the great majority of cases being successful in terms of personal injury litigation. That is a double-edged argument. It supports rather than undermines the case for conditional fees in this area. As a footnote, the existing arrangements cost the taxpayer about £70 million a year. We argue that that money can be better spent elsewhere.
My hon. Friend the Member for Hendon (Mr. Dismore), with his enormous experience in this area of litigation, has few fears, and that gives me comfort. He also referred to an empirical study in February 1999. One has only to read local newspapers and notice boards in advice surgeries, for example, to see that lawyers are advertising their services under conditional fee agreements.
Unlike the existing legal aid system, CFAs will discourage weak or trivial claims. My hon. Friend the Member for Hastings and Rye (Mr. Foster), with about 25 years of experience in legal aid, said that allowing people to pursue weak claims at no risk to themselves and denying their opponents their costs when they win—that has been the position under legal aid—is an abuse of the system.
Concern has been expressed about the criminal defence service by my right hon. Friend the Member for Llanelli (Mr. Davies) and other hon. Friends, including my hon. and learned Friend the Member for Medway. In general, the CDS is a replacement for criminal legal aid. Its ambit is the same in that it is a mechanism for providing advice and assistance in criminal matters. However, we have 323 made it clear that we want a mixed system, with defendants able almost always to choose whether they want a self-employed lawyer or a salaried defender.
§ The Solicitor-General
I have very limited time and there are many points to cover. I am sorry, but I cannot give way.
With a mixed system, there is no danger of a wholly state-employed defender system. What is more, salaried defenders will be subject not only to the normal ethical codes, but, under the Bill, to duties to the courts and to their clients. I doubt whether a salaried lawyer in the public service is likely to come under more pressure than a solicitor employed by a private partnership, which is seeking quite properly to maximise its profits. As my hon. Friend the Member for Great Grimsby (Mr. Mitchell) pointed out, successful public defender systems operate in other jurisdictions.
My hon. Friend the Member for Clwyd, West (Mr. Thomas) asked how the salaried defender system will work. We have included that power in the Bill, but we will take things very slowly. Before we take detailed practical decisions, we will consult interested parties. We expect to start small—for example, we might use a youth court—and we will certainly pilot the arrangements. I add as a footnote that we have no intention of abolishing the duty solicitor scheme, as one Opposition Member suggested. The Bill incorporates in primary legislation the duty solicitor scheme, which currently exists simply in regulations.
As it stands, the Bill does not extend the rights of audience to lawyers employed in the Crown Prosecution Service. As my hon. Friend the Member for Ashfield (Mr. Hoon) explained, the Government will seek to reinstate the clause that was originally in the Bill to allow suitably qualified lawyers employed in the CPS and elsewhere to exercise full rights of audience. I understand that we will have the support of the hon. Member for Solihull in our endeavours, which I welcome.
We do not believe that employed lawyers are in some way ethically deficient by reason only of their employed status. As my hon. and learned Friend the Member for Pentlands pointed out, the Scottish system of advocates depute operates successfully. We value lawyers in public service. There is no statutory restriction on the exercise of rights of audience by crown prosecutors in the lower courts, so why should that bar operate at the higher level? The change is supported by the Lord Chief Justice.
The rules of conduct and qualification regulations will remain in the first instance for the legal professional bodies to determine. The Lord Chancellor is taking a new power to call in rules: not generally, as the hon. and learned Member for Harborough (Mr. Gamier) suggested, but only in respect of rules that unduly restrict the exercise of rights of audience and rights to conduct litigation. Moreover, the exercise of that power will be subject to affirmative approval by both Houses of Parliament.
I come now to the community legal service, about which many of my hon. Friends—including my hon. Friends the Members for Leicester, East (Mr. Vaz) and 324 for Salford (Ms Blears)—spoke most eloquently. Our aim is to transform and rebalance legal services. There is much unmet need: new needs are always developing.
§ Fiona Mactaggart
Does my hon. and learned Friend agree that the Human Rights Act 1998 can play a significant role in rebalancing legal and justice services in this country? Will he consider giving some responsibility under clause 9 to the community legal service to take in cases under that Act?
§ The Solicitor-General
My hon. Friend makes an important point about human rights. We have said that public interest cases will be addressed much more seriously under this Bill than they have been hitherto.
The community legal service will provide help where there is no such assistance at present. It is a radical new approach. It will be flexible, it will work in partnership with funders and other providers of legal services, and will attempt to anticipate and respond to local needs.
We intend to open up new avenues for justice. As my hon. Friend the Member for Leicester, East pointed out, competent legal advice can be provided by citizens advice bureaux and other advice centres. Courts are not the only way to solve problems, and the community legal service will improve access to information and advice. We anticipate that many people are likely to choose mediation.
Several of my hon. Friends expressed concern about the balance between the community legal service and the criminal defence service. There is nothing in the Bill or in any administrative arrangement in government that requires an overspend by the CDS to be made good from the community legal service. There will not be an overall legal aid budget or cash limit.
Both programmes, however, form part of the Lord Chancellor's departmental spending limit, along with other services such as the Court Service, including magistrates courts and other bodies. The Lord Chancellor would be in the same position as any other departmental spending Minister faced with a new pressure. His Cabinet colleagues would expect him to make every effort to offset the overspend by making savings elsewhere. The scope for covering a large criminal defence service overspend is limited because most of the community legal service budget would already be committed to funding payments contracts let in earlier years, so that issue is addressed by the funding system.
I want briefly to mention ethical standards, to which the hon. Member for Torridge and West Devon (Mr. Burnett) referred. I appreciate the concerns of other Opposition Members on that issue. The Bill does much to encourage high ethical standards. It puts lawyers' duty to behave ethically on a statutory basis and includes provision for a code of conduct for lawyers employed by the new criminal defence service. The legal services consultative panel will have a duty to assist in the maintenance and development of standards in the education, training and conduct of those offering legal services.
Magistrates courts were mentioned by several hon. Members. The changes to those courts will allow local committees to work more effectively with other criminal justice agencies.
I shall briefly mention some amendments that we intend to table. I shall disappoint my hon. Friend the Member for Hendon by telling him that there will be no 325 amendments to abolish silk. I can say no more about that as I have a conflict of interest. My hon. Friend the Member for Wellingborough (Mr. Stinchcombe) and the hon. and learned Member for Harborough raised the issue of the objectives clause. We intend to remove that clause, with the consent of the House, and are thinking of replacing it with a detailed objectives clause for the community legal service. We object to the clause because it expresses unrealistic aspirations, and it is better specifically to address the objectives of the community legal service and the criminal defence service.
I conclude by saying that this is an essential package of reforms to the justice system. No one should doubt our commitment to maintaining traditional standards for lawyers. The Bill makes it clear that lawyers will continue to owe their first duty to the interests of justice. Our search for value for money will never be made at the expense of proper quality. Those who use our legal services deserve nothing less, as is obvious in the case of defendants accused of a crime or litigants seeking to assert or defend their rights through the courts. I commend the Bill to the House.
§ Question put, That the amendment be made:—
§ The House divided: Ayes 159, Noes 338.328
|Division No. 143]||[9.59 pm|
|Ainsworth, Peter (E Surrey)||Dafis, Cynog|
|Allan, Richard||Davey, Edward (Kingston)|
|Amess, David||Davies, Quentin (Grantham)|
|Arbuthnot, Rt Hon James||Davis, Rt Hon David (Haltemprice & Howden)|
|Atkinson, David (Bour'mth E)||Day, Stephen|
|Atkinson, Peter (Hexham)||Duncan, Alan|
|Baker, Norman||Duncan Smith, Iain|
|Baldry, Tony||Evans, Nigel|
|Ballard, Jackie||Faber, David|
|Beggs, Roy||Fabricant, Michael|
|Beith, Rt Hon A J||Fallon, Michael|
|Bell, Martin (Tatton)||Fearn, Ronnie|
|Bercow, John||Flight, Howard|
|Beresford, Sir Paul||Forth, Rt Hon Eric|
|Blunt, Crispin||Foster, Don (Bath)|
|Bottomley, Peter (Worthing W)||Fox, Dr Liam|
|Bottomley, Rt Hon Mrs Virginia||Gale, Roger|
|Brady, Graham||Garnier, Edward|
|Brand, Dr Peter||Gibb, Nick|
|Brazier, Julian||Gillan, Mrs Cheryl|
|Brooke, Rt Hon Peter||Gorman, Mrs Teresa|
|Browning, Mrs Angela||Green, Damian|
|Bruce, Ian (S Dorset)||Greenway, John|
|Bruce, Malcolm (Gordon)||Grieve, Dominic|
|Burnett, John||Hamilton, Rt Hon Sir Archie|
|Burns, Simon||Hammond, Philip|
|Butterfill, John||Harris, Dr Evan|
|Campbell, Rt Hon Menzies||Harvey, Nick|
|(NE Fife)||Hawkins, Nick|
|Cash, William||Hayes, John|
|Chapman, Sir Sydney||Heath, David (Somerton & Frome)|
|(Chipping Barnet)||Heathcoat—Amory, Rt Hon David|
|Chope, Christopher||Hogg, Rt Hon Douglas|
|Clappison, James||Horam John|
|Clark, Dr Michael (Rayleigh)||Howard, Rt Hon Michael|
|Clarke, Rt Hon Kenneth||Hughes, Simon (Southwark N)|
|Clifton—Brown, Geoffrey||Jack, Rt Hon Michael|
|Collins, Tim||Jackson, Robert (Wantage)|
|Colvin, Michael||Jenkin, Bernard|
|Cormack, Sir Patrick|
|Jones, Nigel (Cheltenham)||St Aubyn, Nick|
|Kennedy, Charles (Ross Skye)||Sanders, Adrian|
|King, Rt Hon Tom (Bridgwater)||Sayeed, Jonathan|
|Kirkbride, Miss Julie||Shepherd, Richard|
|Kirkwood, Archy||Simpson, Keith (Mid—Norfolk)|
|Laing, Mrs Eleanor||Smith, Sir Robert (W Ab'd'ns)|
|Lait, Mrs Jacqui||Spicer, Sir Michael|
|Lansley, Andrew||Spring, Richard|
|Leigh, Edward||Stanley, Rt Hon Sir John|
|Letwin, Oliver||Steen, Anthony|
|Lewis, Dr Julian (New Forest E)||Streeter, Gary|
|Lidington, David||Stunell, Andrew|
|Lilley, Rt Hon Peter||Swayne, Desmond|
|Lloyd, Rt Hon Sir Peter (Fareham)||Syms, Robert|
|Llwyd, Elfyn||Tapsell, Sir Peter|
|Loughton, Tim||Taylor, Ian (Esher & Walton)|
|Luff, Peter||Taylor, John M (Solihull)|
|Lyell, Rt Hon Sir Nicholas||Taylor, Matthew (Truro)|
|MacGregor, Rt Hon John||Taylor, Sir Teddy|
|MacKay, Rt Hon Andrew||Tonge, Dr Jenny|
|Maclean, Rt Hon David||Townend, John|
|McLoughlin, Patrick||Tredinnick, David|
|Maples, John||Trend, Michael|
|Mates, Michael||Tyler, Paul|
|May, Mrs Theresa||Tyrie, Andrew|
|Moss, Malcolm||Walter, Robert|
|Nicholls, Patrick||Wardle, Charles|
|Norman, Archie||Waterson, Nigel|
|Oaten, Mark||Wells, Bowen|
|Öpik, Lembit||Welsh, Andrew|
|Ottaway, Richard||Whitney, Sir Raymond|
|Page, Richard||Whittingdale, John|
|Paice, James||Widdecombe, Rt Hon Miss Ann|
|Paterson, Owen||Wilkinson, John|
|Pickles, Eric||Willis, Phil|
|Prior, David||Winterton, Mrs Ann (Congleton)|
|Redwood, Rt Hon John||Winterton, Nicholas (Macclesfield)|
|Rendel, David||Yeo, Tim|
|Robathan, Andrew||Young, Rt Hon Sir George|
|Robertson, Laurence (Tewk'b'ry)||Tellers for the Ayes:|
|Rowe, Andrew (Faversham)||Mr. Oliver Heald and|
|Ruffley, David||Mrs. Caroline Spelman.|
|Abbott, Ms Diane||Bradshaw, Ben|
|Adams, Mrs Irene (Paisley N)||Brinton, Mrs Helen|
|Ainsworth, Robert (Cov'try NE)||Brown, Rt Hon Nick (Newcastle E)|
|Allen, Graham||Brown, Russell (Dumfries)|
|Anderson, Donald (Swansea E)||Buck, Ms Karen|
|Anderson, Janet (Rossendale)||Burden, Richard|
|Armstrong, Rt Hon Ms Hilary||Burgon, Colin|
|Ashton, Joe||Butler, Mrs Christine|
|Atherton, Ms Candy||Byers, Rt Hon Stephen|
|Atkins, Charlotte||Caborn, Rt Hon Richard|
|Barnes, Harry||Campbell, Alan (Tynemouth)|
|Barron, Kevin||Campbell, Mrs Anne (C'bridge)|
|Bayley, Hugh||Campbell, Ronnie (Blyth V)|
|Beard, Nigel||Campbell—Savours, Dale|
|Beckett, Rt Hon Mrs Margaret||Cann, Jamie|
|Begg, Miss Anne||Caplin, Ivor|
|Bell, Stuart (Middlesbrough)||Casale, Roger|
|Benn, Rt Hon Tony||Caton, Martin|
|Benton, Joe||Cawsey, Ian|
|Bermingham, Gerald||Chapman, Ben (Wirral S)|
|Berry, Roger||Chaytor, David|
|Best, Harold||Clapham, Michael|
|Betts, Clive||Clark, Rt Hon Dr David (S Shields)|
|Blackman, Liz||Clark, Dr Lynda|
|Blears, Ms Hazel||(Edinburgh Pentlands)|
|Blizzard, Bob||Clark, Paul (Gillingham)|
|Blunkett, Rt Hon David||Clarke, Charles (Norwich S)|
|Boateng, Paul||Clarke, Eric (Midlothian)|
|Borrow, David||Clarke, Rt Hon Tom (Coatbridge)|
|Bradley, Keith (Withington)||Clarke, Tony (Northampton S)|
|Bradley, Peter (The Wrekin)||Clelland, David|
|Coaker, Vernon||Hepburn, Stephen|
|Coffey, Ms Ann||Heppell, John|
|Cohen, Harry||Hesford, Stephen|
|Colman, Tony||Hewitt, Ms Patricia|
|Connarty, Michael||Hill, Keith|
|Cook, Frank (Stockton N)||Hinchliffe, David|
|Corbett, Robin||Hodge, Ms Margaret|
|Corston, Ms Jean||Hoey, Kate|
|Cousins, Jim||Hood, Jimmy|
|Cox, Tom||Hoon, Geoffrey|
|Cranston, Ross||Hope, Phil|
|Crausby, David||Hopkins, Kelvin|
|Cryer, Mrs Ann (Keighley)||Howarth, George (Knowsley N)|
|Cryer, John (Hornchurch)||Howells, Dr Kim|
|Cummings, John||Hoyle, Lindsay|
|Cunliffe, Lawrence||Hughes, Ms Beverley (Stretford)|
|Cunningham, Rt Hon Dr Jack||Hughes, Kevin (Doncaster N)|
|(Copeland)||Humble, Mrs Joan|
|Cunningham, Jim (Cov'try S)||Hutton, John|
|Curtis-Thomas, Mrs Claire||Iddon, Dr Brian|
|Dalyell, Tam||Illsley, Eric|
|Darling, Rt Hon Alistair||Jackson, Ms Glenda (Hampstead)|
|Darvill, Keith||Jackson, Helen (Hillsborough)|
|Davey, Valerie (Bristol W)||Jenkins, Brian|
|Davidson, Ian||Johnson, Alan (Hull W & Hessle)|
|Davies, Rt Hon Denzil (Llanelli)||Johnson, Miss Melanie|
|Davies, Geraint (Croydon C)||(Welwyn Hatfield)|
|Dawson, Hilton||Jones, Barry (Alyn & Deeside)|
|Dean, Mrs Janet||Jones, Helen (Warrington N)|
|Denham, John||Jones, Ms Jenny|
|Dismore, Andrew||(Wolverh'ton SW)|
|Dobbin, Jim||Jones, Jon Owen (Cardiff C)|
|Dobson, Rt Hon Frank||Jones, Dr Lynne (Selly Oak)|
|Doran, Frank||Jowell, Rt Hon Ms Tessa|
|Dowd, Jim||Keeble, Ms Sally|
|Drown, Ms Julia||Keen, Alan (Feltham & Heston)|
|Dunwoody, Mrs Gwyneth||Kelly, Ms Ruth|
|Eagle, Angela (Wallasey)||Kemp, Fraser|
|Edwards, Huw||Khabra, Piara S|
|Efford, Clive||Kidney, David|
|Ellman, Mrs Louise||King, Andy (Rugby & Kenilworth)|
|Ennis, Jeff||Kingham, Ms Tess|
|Field, Rt Hon Frank||Kumar, Dr Ashok|
|Fisher. Mark||Ladyman, Dr Stephen|
|Fitzpatrick, Jim||Lawrence, Ms Jackie|
|Flint, Caroline||Laxton, Bob|
|Flynn, Paul||Lepper, David|
|Follett, Barbara||Leslie, Christopher|
|Foster, Rt Hon Derek||Levitt, Tom|
|Foster, Michael Jabez (Hastings)||Lewis, Ivan (Bury S)|
|Foster, Michael J (Worcester)||Linton, Martin|
|Fyfe, Maria||Lloyd, Tony (Manchester C)|
|Galloway, George||Lock, David|
|Gapes, Mike||Love, Andrew|
|Gardiner, Barry||McAvoy, Thomas|
|George, Bruce (Walsall S)||McCabe, Steve|
|Gerrard, Neil||McCafferty, Ms Chris|
|Gibson, Dr Ian||McCartney, Rt Hon Ian|
|Gilroy, Mrs Linda||(Makerfield)|
|Godman, Dr Norman A||McDonagh, Siobhain|
|Godsiff, Roger||McDonnell, John|
|Goggins, Paul||McFall, John|
|Golding, Mrs Llin||Mclsaac, Shona|
|Gordon, Mrs Eileen||McKenna, Mrs Rosemary|
|Griffiths, Jane (Reading E)||Mackinlay, Andrew|
|Griffiths, Nigel (Edinburgh S)||McNamara, Kevin|
|Griffiths, Win (Bridgend)||McNulty, Tony|
|Grocott, Bruce||MacShane, Denis|
|Gunnell, John||Mactaggart, Fiona|
|Hall, Mike (Weaver Vale)||McWalter, Tony|
|Hall, Patrick (Bedford)||McWilliam, John|
|Harman, Rt Hon Ms Harriet||Mahon, Mrs Alice|
|Heal, Mrs Sylvia||Mallaber, Judy|
|Healey, John||Mandelson, Rt Hon Peter|
|Henderson, Doug (Newcastle N)||Marek, Dr John|
|Henderson, Ivan (Harwich)||Marsden, Gordon (Blackpool S)|
|Marshall, Jim (Leicester S)||Sheerman, Barry|
|Marshall—Andrews, Robert||Sheldon, Rt Hon Robert|
|Martlew, Eric||Shipley, Ms Debra|
|Maxton, John||Short, Rt Hon Clare|
|Meacher, Rt Hon Michael||Simpson, Alan (Nottingham S)|
|Meale, Alan||Singh, Marsha|
|Merron, Gillian||Skinner, Dennis|
|Michie, Bill (Shef'ld Heeley)||Smith, Rt Hon Andrew (Oxford E)|
|Miller, Andrew||Smith, Angela (Basildon)|
|Mitchell, Austin||Smith, Rt Hon Chris (Islington S)|
|Moffatt, Laura||Smith, Jacqui (Redditch)|
|Moonie, Dr Lewis||Smith, John (Glamorgan)|
|Moran, Ms Margaret||Smith, Llew (Blaenau Gwent)|
|Morgan, Ms Julie (Cardiff N)||Snape, Peter|
|Morley, Elliot||Soley, Clive|
|Morris, Ms Estelle (B'ham Yardley)||Southworth, Ms Helen|
|Mudie, George||Spellar, John|
|Mullin, Chris||Squire, Ms Rachel|
|Murphy, Denis (Wansbeck)||Starkey, Dr Phyllis|
|Naysmith, Dr Doug||Steinberg, Gerry|
|Norris, Dan||Stevenson, George|
|O'Brien, Bill (Normanton)||Stewart, David (Inverness E)|
|O'Brien, Mike (N Warks)||Stinchcombe, Paul|
|O'Hara, Eddie||Stoate, Dr Howard|
|O'Neill, Martin||Stott, Roger|
|Organ, Mrs Diana||Strang, Rt Hon Dr Gavin|
|Osborne, Ms Sandra||Straw, Rt Hon Jack|
|Palmer, Dr Nick||Stringer, Graham|
|Pearson, Ian||Stuart, Ms Gisela|
|Pendry, Tom||Sutcliffe, Gerry|
|Perham, Ms Linda||Taylor, Rt Hon Mrs Ann|
|Pike, Peter L||Taylor, Ms Dari (Stockton S)|
|Plaskitt, James||Taylor, David (NW Leics)|
|Pollard, Kerry||Thomas, Gareth (Clwyd W)|
|Pope, Greg||Timms, Stephen|
|Pound, Stephen||Tipping, Paddy|
|Powell, Sir Raymond||Todd, Mark|
|Prentice, Ms Bridget (Lewisham E)||Trickett, Jon|
|Prentice, Gordon (Pendle)||Truswell, Paul|
|Prescott, R Hon John||Turner, Dennis (Wolverh'ton SE)|
|Primarolo, Dawn||Turner, Dr Desmond (Kemptown)|
|Prosser, Gwyn||Turner, Dr George (NW Norfolk)|
|Purchase, Ken||Twigg, Derek (Halton)|
|Quin, Rt Hon Ms Joyce||Twigg, Stephen (Enfield)|
|Quinn, Lawrie||Vaz, Keith|
|Radice, Giles||Walley, Ms Joan|
|Rammell, Bill||Ward, Ms Claire|
|Rapson, Syd||Wareing, Robert N|
|Raynsford Nick||White, Brain|
|Reed, Andrew (Loughborough||Wicks, Malcolm|
|Reid,Rt Hon Dr John (Hamilton N)||Williams, Rt Hon Alan|
|Robinson, Geoffrey (Cov'try NW))||(Swansea W)|
|Roche, Mrs Barbara||Williams, Alan W (E Carmarthen)|
|Rogers, Allan||Winnick, David|
|Rooker, Jeff||Winterton, Ms Rosie (Doncaster C)|
|Rooney, Terry||Wise, Audrey|
|Ross, Ernie (Dundee W)||Wood, Mike|
|Roy, Frank||Woolas, Phil|
|Ruane, Chris||Worthington, Tony|
|Ruddock, Joan||Wray, James|
|Russell, Ms Christine (Chester)||Wright, Anthony D (Gt Yarmouth|
|Ryan, Ms Joan||Wright, Dr Tony (Cannock|
|Sarwar, Mohammad||Wyatt, Derek|
|Savidge, Malcolm||Tellers for the Noes:|
|Sawford, Phil||Jane Kennedy and|
|Sedgemore, Brain||Mr.David Jamieson.|
§ Question accordingly negatived.
§ Main Question put forthwith, pursuant to Standing Order No.62 (Amendment on Second or Third Reading):—
§ The House divided: Ayes 335,Noes 156.332
|Division No. 144]||[10.13 pm|
|Abbott, Ms Diane||Crausby, David|
|Adams, Mrs Irene (Paisley N)||Cryer, Mrs Ann (Keighley|
|Ainsworth, Robert (Cov'try NE)||Cryer, John (Hornchurch)|
|Allen, Graham||Cummings, Jon|
|Anderson, Donald (Swansea E)||Cunliffe, Lawrence|
|Anderson, Janet (Rossendale)||Cunningham, Rt Hon Dr Jack|
|Armstrong, Rt Hon Ms Hilary||(Copeland)|
|Ashton, Joe||Cunningham, Jim (Cov'try S)|
|Atherton, Ms Candy||Curtis—Thomas,Mrs Clarie|
|Atkins, Charlotte||Dalyell, Tam|
|Barnes, Harry||Darling, Rt Hon Alistair|
|Barron, Kevin||Darvill, Keith|
|Bayley, Hugh||Davey, Valerie (Bristol W)|
|Beard, Nigel||Davidson, Ian|
|Beckett, Rt Hon Mrs Margaret||Davies, Geraint (Croydon C|
|Begg, Miss Anne||Dawson, Hilton|
|Bell, Stuart (Middlesbrough)||Dean, Mrs Janet|
|Benn, Rt Hon Tony||Denham, John|
|Benton, Joe||Dismore, Andrew|
|Bermingham, Gerald||Dobbin, Jim|
|Berry, Roger||Dobson, Rt Hon Frank|
|Best, Harold||Doran, Frank|
|Betts, Clive||Dowd, Jim|
|Blackman, Liz||Drown, Ms Julia|
|Blears, Ms Hazel||Dunwoody, Mrs Gwyneth|
|Blizzard, Bob||Eagle, Angela (Wallasey)|
|Blunkett, Rt Hon David||Edwards, Huw|
|Boateng, Paul||Efford, Clive|
|Borrow, David||Ellman, Mrs Louise|
|Bradley, Keith (Withington)||Ennis, Jeff|
|Bradley, Peter (The Wrekin)||Field, Rt Hon Frank|
|Bradshaw, Ben||Fisher, Mark|
|Brinton, Mrs Helen||Fitzpatrick, Jim|
|Brown, Rt Hon Nick (Newcastle E)||Flint, Caroline|
|Brown, Russell (Dumfries)||Flynn, Paul|
|Buck, Ms Karen||Follett, Barbara|
|Burden, Richard||Foster, Rt Hon Derek|
|Burgon, Colin||Foster, Michael Jabez (Hastings)|
|Butler, Mrs Christine||Foster, Michael J (Worcester)|
|Byers, Rt Hon Stephen||Fyfe, Maria|
|Caborn, Rt Hon Richard||Galloway, George|
|Campbell, Alan (Tynemouth)||Gapes, Mike|
|Campbell, Mrs Anne (C'bridge)||Gardiner, Barry|
|Campbell, Ronnie (Blyth V)||George, Bruce (Walsall S)|
|Campbell—Savours, Dale||Gerrard, Neil|
|Cann, Jamie||Gibson, Dr Ian|
|Caplin, Ivor||Gilroy, Mrs Linda|
|Casale, Roger||Godman, Dr Norman A|
|Caton, Martin||Godsiff, Roger|
|Cawsey, Ian||Goggins, Paul|
|Chapman, Ben (Wirral S)||Golding, Mrs Llin|
|Chaytor, David||Gordon, Mrs Eileen|
|Clapham, Michael||Griffiths, Jane (Reading E)|
|Clark, Rt Hon Dr David (S Shields)||Griffiths, Nigel (Edinburgh S)|
|Clark, Dr Lynda||Griffiths, Win (Bridgend)|
|(Edinburgh Pentlands)||Grocott, Bruce|
|Clark, Paul (Gillingham)||Gunnell, John|
|Clarke, Charles (Norwich S)||Hall, Mike (Weaver Vale)|
|Clarke, Eric (Midlothian)||Hall, Patrick (Bedford)|
|Clarke, Rt Hon Tom (Coatbridge)||Harman, Rt Hon Ms Harriet|
|Clarke, Tony (Northampton S)||Heal, Mrs Sylvia|
|Clelland, David||Healey, John|
|Coaker, Vernon||Henderson, Doug (Newcastle N)|
|Coffey, Ms Ann||Henderson, Ivan (Harwich)|
|Cohen, Harry||Hepburn, Stephen|
|Colman, Tony||Heppell, John|
|Connarty, Michael||Hesford, stephen|
|Cook, Frank (Stockton N)||Hewitt, Ms Patricia|
|Corbett, Robin||Hill, Keith|
|Corston, Ms Jean||Hinchliffe, David|
|Cousins, Jim||Hodge, Ms Margaret|
|Cox, Tom||Hoey, Kate|
|Cranston, Ross||Hood, Jimmy|
|Hoon, Geoffrey||Mitchell, Austin|
|Hope, Phil||Moffatt, Laura|
|Hopkins, Kelvin||Moonie, Dr Lewis|
|Howarth, George (Knowsley N)||Moran, Ms Margaret|
|Howells, Dr Kim||Morgan, Ms Julie (Cardiff N)|
|Hoyle, Lindsay||Morley, Elliot|
|Hughes, Ms Beverley (Stretford||Morris, Ms Estelle (B'ham Yardley|
|Hughes, Kevin (Doncaster N)||Mudie, George|
|Humble, Mrs Joan||Mullin, Chris|
|Hutton, John||Murphy, Denis (Wansbeck)|
|Iddon, Dr Brain||Naysmith, Dr Doug|
|Illsley, Eric||Norris, Dan|
|Jackson, Ms Glenda (Hampstead)||O'Brien, Bill (Normanton)|
|Jackson, Helen (Hillsborough)||O'Brein, Mike (N Warks)|
|Jenkins, Brain||O'Hara, Eddie|
|Johnson, Alan (Hull W & Hessle)||O'Neil, Martin|
|Johnson, Miss Melanie||Organ, Mrs Diana|
|(Welwyn Hatfield)||Osborne, Ms Sandra|
|Jones, Barry (Alyn & Deeside)||Palmer, Dr Nick|
|Jones, Helen (Warrington N)||Pearson, Ian|
|Jones, Ms Jenny||Pendry, Tom|
|(Wolverth'ton SW)||Perham, Ms Linda|
|Jones, Jon Owen (Cardiff C)||Pickthall, Colin|
|Jones, Dr Lynne (Selly Oak)||Pike, Peter L|
|Jowell, Rt Hon Ms Tessa||Plaskitt, James|
|Keeble, Ms Sally||Pollard, Kerry|
|Keen, Alan (Feltham & Heston)||Pope, Greg|
|Keen, Ann Brentford & Isleworth)||Pound, Stephen|
|Kelly, Ms Ruth||Powell, Sir Raymond|
|Kemp, Fraser||Prentice, Ms Bridget (Lewisham E)|
|Khabra, Piara S||Prentice, Gordon (Pendle)|
|Kidney, David||Prescott, Rt Hon John|
|King, Andy (Rugby & Kenilworth)||Primarolo, Dawn|
|Kingham, Ms Tess||Prosser, Gwyn|
|Kumar, Dr Ashok||Purchase, Ken|
|Ladyman, Dr Stephen||Quin, Rt Hon Ms Joyce|
|Lawrence, Ms Jackie||Quinn, Lawrie|
|Laxton, Bob||Radice, Giles|
|Lepper, David||Rammell, Bill|
|Leslie, Christopher||Rapson, Syd|
|Levitt, Tom||Raynsford, Nick|
|Lewis, Ivan (Bury S)||Reed, Andrew (Loughborough)|
|Linton, Martin||Reid, Rt Hon Dr John (Hamilton N)|
|Lloyd, Tony (Manchester C)||Roche, Mrs Barbara|
|Lock, David||Rooker, Jeff|
|Love, Andrew||Rooney, Terry|
|McAvoy, Thomas||Ross, Ernie (Dundee W)|
|McCabe, Steve||Roy, Frank|
|McCafferty, Ms Chris||Ruane, Chris|
|McCartney, Rt Hon Ian||Ruddock, Joan|
|(Makerfield)||Russell, Ms Christine (Chester|
|McDonagh, Siobhain||Ryan, Ms Joan|
|McDonnell, John||Sarwar, Mohammad|
|McFall, Jon||Savidge, Malcolm|
|Mclsaac, Shona||Sawford, Phil|
|McKenna, Mrs Rosemary||Sedgemore, Brain|
|Mackinlay, Andrew||Sheerman, Barry|
|McNamara, Kevin||Sheldon, Rt Hon Robert|
|McNulty, Tony||Shipley, Ms Debra|
|MacShane, Denis||Short, Rt Hon Clare|
|Mactaggart, Fiona||Simpson, Alan (Nottingham S)|
|McWalter, Tony||Singh, Marsha|
|McWilliam, John||Skinner, Dennis|
|Mahon, Mrs Alice||Smith, Rt Hon Andrew (Oxford E)|
|Mallaber, Judy||Smith, Angela (Basildon)|
|Mandelson, Rt Hon Peter||Smith, Rt Hon Chris (Islington S)|
|Marek, Dr John||Smith, Jacqui (Redditch)|
|Marsden, Gordon (Blackpool S)||Smith, John (Glamorgan)|
|Marshall, Jim (Leicester S)||Smith, Llew (Blaenau Gwent)|
|Martlew, Eric||Snape, Peter|
|Maxton, John||Soley, Clive|
|Meacher, Rt Hon Michael||Southworth, Ms Helen|
|Meale, Alan||Spellar, John|
|Merron, Gillian||Squire, Ms Rachel|
|Michie, Bill (Shef'ld Heeley)||Starkey,Dr Phyllis|
|Miller, Andrew||Steinberg, Gerry|
|Stevenson, George||Twigg, Stephen (Enfield)|
|Stewart, David (Inverness E)||Vaz, Keith|
|Stinchcombe, Paul||Walley, Ms Joan|
|Stoate, Dr Howard||Ward, Ms Clarie|
|Stott, Roger||Wareing, Robert N|
|Strang, Rt Hon Dr Gavin||White, Brian|
|Straw, Rt Hon Jack||Wicks, Malcolm|
|Stringer, Graham||Williams, Rt Hon Alan|
|Stuart, Ms Gisela||(Swansea W)|
|Sutcliffe, Gerry||Williams, Alan W (E Carmarthen)|
|Taylor, Rt Hon Mrs Ann||Winnick, David|
|(Dewsbury)||Winterton, Ms Rosie (Doncaster C)|
|Taylor, Ms Dart (Stockton S)||Wise, Audrey|
|Taylor, David (NW Leics)||Wood, Mike|
|Thomas, Gareth (Clwyd W)||Woolas, Phil|
|Timms, Stephen||Worthington, Tony|
|Tipping, Paddy||Wray, James|
|Todd, Mark||Wright, Anthony D (Gt Yarmouth)|
|Trickett, Jon||Wright, Dr Tony (Cannock)|
|Truswell, Paul||Wyatt, Derek|
|Turner, Dennis (Wolverh'ton SE)|
|Turner, Dr Desmond (Kemptown)||Tellers for the Ayes:|
|Turner, Dr George (NW Norfolk)||Jane Kennedy and|
|Twigg, Derek (Halton)||Mr. David Jamieson.|
|Ainsworth, Peter (E Surrey)||Davey, Edward (Kingston)|
|Allan, Richard||Davies, Quentin (Grantham)|
|Amess, David||Davis, Rt Hon David (Haltemprice & Howden)|
|Arbuthnot, Rt Hon James|
|Atkinson, David (Bour'mth E)||Day, Stephen|
|Atkinson, Peter (Hexham)||Duncan, Alan|
|Baker, Norman||Duncan Smith, Iain|
|Baldry, Tony||Evans, Nigel|
|Ballard, Jackie||Faber, David|
|Beggs, Roy||Fabricant, Michael|
|Beith, Rt Hon A J||Fallon, Michael|
|Bell, Martin (Tatton)||Fearn, Ronnie|
|Bercow, John||Flight, Howard|
|Beresford, Sir Paul||Forth, Rt Hon Eric|
|Blunt, Crispin||Foster, Don (Bath)|
|Bottomley, Peter (Worthing W)||Fox, Dr Liam|
|Bottomley, Rt Hon Mrs Virginia||Gale, Roger|
|Brady, Graham||Garnier, Edward|
|Brand, Dr Peter||Gibb, Nick|
|Brazier, Julian||Gillan, Mrs Cheryl|
|Brooke, Rt Hon Peter||Gorman, Mrs Teresa|
|Browning, Mrs Angela||Green, Damian|
|Bruce, Ian (S Dorset)||Greenway, John|
|Bruce, Malcolm (Gordon)||Grieve, Dominic|
|Burnett, John||Hamilton, Rt Hon Sir Archie|
|Burns, Simon||Hammond, Philip|
|Butterfill, John||Harris, Dr Evan|
|Cash, William||Harvey, Nick|
|Chapman, Sir Sydney||Hawkins, Nick|
|(Chipping Barnet)||Hawkins, Nick|
|Chope, Christopher||Health, David (Somerton & Frome)|
|Clappison, James||Heathcoat—Amory,Rt Hon David|
|Clark, Dr Michael (Rayleigh)||Hogg,Rt Hon Douglas|
|Clarke, Rt Hon Kenneth||Horam, John|
|(Rushcliffe)||Howard, Rt Hon Michael|
|Clifton—Brown, Geoffrey||Hughes, Simon (Southwark N)|
|Collins, Tim||Hunter, Andrew|
|Colvin, Michael||Jack, Rt Hon Michael|
|Cormack, Sir Patrick||Jackson, Robert (Wantage)|
|Dafis, Cynog||Jenkin, Bernard|
|Jones, Nigel (Cheltenham)||St Aubyn, Nick|
|Kennedy, Charles (Ross Skye)||Sanders, Adrian|
|King, Rt Hon Tom (Bridgwater)||Sayeed, Jonathan|
|Kirkbride, Miss Julie||Simpson, Keith (Mid—Norfolk)|
|Kirkwood, Archy||Smith, Sir Robert (W Ab'd'ns)|
|Laing, Mrs Eleanor||Spicer, Sir Michael|
|Lait, Mrs Jacqui||Spring, Richard|
|Lansley, Andrew||Stanley, Rt Hon Sir John|
|Leigh, Edward||Steen, Anthony|
|Letwin, Oliver||Streeter, Gary|
|Lewis, Dr Julian (New Forest E)||Stunell, Andrew|
|Lidington, David||Swayne, Desmond|
|Lilley, Rt Hon Peter||Syms, Robert|
|Lloyd, Rt Hon Sir Peter (Fareham)||Tapsell, Sir Peter|
|Llwyd, Elfyn||Taylor, Ian (Esher & Walton)|
|Loughton, Tim||Taylor, John M (Solihull)|
|Luff, Peter||Taylor, Matthew (Truro)|
|Lyell, Rt Hon Sir Nicholas||Taylor, Sir Teddy|
|MacGregor, Rt Hon John||Tonge, Dr Jenny|
|MacKay, Rt Hon Andrew||Townend, John|
|Maclean, Rt Hon David||Tredinnick, David|
|McLoughlin, Patrick||Trend, Michael|
|Maples, John||Tyler, Paul|
|Mates, Michael||Tyrie, Andrew|
|May, Mrs Theresa||Walter, Robert|
|Moss, Malcolm||Wardle, Charles|
|Nicholls, Patrick||Waterson, Nigel|
|Norman, Archie||Wells, Bowen|
|Oaten, Mark||Welsh, Andrew|
|Öpik,Lembit||Whitney, Sir Raymond|
|Ottaway, Richard||Whittingdale, John|
|Page, Richard||Widdecombe, Rt Hon Miss Ann|
|Paice, James||Wilkinson, John|
|Paterson, Owen||Willis, Phil|
|Pickles, Eric||Winterton, Mrs Ann (Congleton)|
|Prior, David||Winterton, Nicholas (Macclesfield)|
|Redwood, Rt Hon John||Yeo, Tim|
|Rendel, David||Young, Rt Hon sir George|
|Robathan, Andrew||Tellers for the Noes:|
|Robertson, Laurence (Tewk'b'ry)||Mrs. Caroline Spelman and|
|Ruffley, David||Mr. Oliver Heald.|
§ Question accordingly agreed to.
§ Bill read a Second time, and committed to a Standing Committee, Pursuant to Standing Order No. 63 (Committal of Bills).