| Previous Section | Index | Home Page |
10.30 am
Mr. Edward Garnier (Harborough): I must begin by declaring an interest as a practising member of the Bar.
Mr. Garnier: And that as well. The Parliamentary Secretary, at least managed to keep the hon. Member for Islington, North (Mr. Corbyn) awake, even if he did not manage to keep him on message.
This debate on the review of civil justice and legal aid represents the first occasion since the Lord Chancellor's speech at the Law Society conference on 18 October in Cardiff to consider his proposals for the reform of legal aid. I will examine those in some detail shortly, but legal aid reform is not the only reform under discussion.
Perhaps the most obvious place to start is Lord Woolf's report on the civil justice system, "Access to Justice", which was published in 1996. That report, which was requested by the previous Government, produced a large number of recommendations and conclusions, all of which bear careful thought and many of which will, we hope, increase access to justice, reduce the cost of litigation and increase the speed at which justice is achieved. There is no good reason to suppose that speed and efficiency are inimical to justice.
What the public want--be they rich or poor, or part of that group that is now called middle England--is that the civil justice system should provide ways to resolve their civil disputes and get to the heart of the problem, dealing with them quickly, painlessly and cheaply. That is certainly what my clients want, be they plaintiffs or defendants, and just because the field in which I practise--defamation--is outside the ambit of legal aid, it does not follow that my clients are unrepresentative of other classes of litigant.
Clients want the same clear information that anyone would want when deciding to make a large commitment of their time, energy, emotion or money. They want to know how long a case will take, what it will cost, what will be required of them as the case progresses and what will be the likely result. They also want to be told the answers to their questions in language that they can readily understand and in a manner that understands them and the intense and unusual difficulties that they are faced with. For us lawyers, litigation is a common occurrence, but for the public it is something which, should they face it at all, they will face only once in their lifetime. They want to know that, at the end of the ordeal, they will have
a reasonable chance of achieving what they set out to do and that the cost in time, money, energy and emotion will be proportionate to the achievement.
Irrespective of how people find their way into the civil justice system, they need to be able to understand it and to feel that it makes sense. They may need help to use it. They want that help to be local, accessible and affordable. They want it to be tailored to their needs and capabilities. They want a choice of ways in which to resolve their problems and to help to choose what will work best in their case. They want lawyers to be problem solvers and not mere purveyors of the law.
Some problems will need a strong dose of adversarial justice, but a good many will not. In short, people with civil disputes want information, choice, as much certainty as can humanly be provided, help and guidance, and a justice system that does not frighten them or treat them as inconveniences, interfering with the daily lives of courts, court staff, judges or lawyers.
One of the great strengths of Lord Woolf's report is that it expressly attempts to look at the civil justice system through the eyes of ordinary people. The theme running through the whole of his necessarily lengthy report is how we can make the civil justice system better for the public. What are we doing that makes it difficult for the public to understand or to achieve justice?
I welcome and applaud that, just as I agree with Lord Woolf's analysis of what a civil justice system should do. He said that it should be just in the results it delivers and fair in the way that it treats litigants. It should offer appropriate procedures at a reasonable cost, deal with cases with reasonable speed, be understandable to those who use it, be responsive to the needs of those who use it and provide as much certainty as the nature of particular cases allows. It should be effective, adequately resourced and organised.
Today, the House should consider how the Government's proposals largely to abolish civil legal aid square with those aims. In so far as the present civil justice system fails to achieve them, it should be changed so that it does achieve them. There is broad support for the thrust of Lord Woolf's report in the legal profession, the judiciary and the consumer protection and interest groups that are best able to articulate public opinion on the matter.
A period is now required to work up the Woolf proposals, to test them in the real world and to adjust them in the light of experience. If the Government take those proposals forward constructively and in a way that is conducive to the overall public good, they will have the Opposition's support. If they do not, they will not have our support, and they cannot expect to have it either.
The Government recently received the Middleton report, which reviews civil justice and legal aid. It appears that they are not prepared to accept Sir Peter Middleton's advice in every respect. Of course, Governments and their Ministers do not have to accept advice for which they have asked and which is a result of careful consideration of the issues, but when they do not do so they should explain why, and be prepared for the House to scrutinise their decision in public. Today is the first occasion on which a Minister from the Lord Chancellor's Department has condescended to do that.
Why have the Government decided not to allow conditional fee arrangements and legal aid to run alongside each other while they are monitored and the Government methodically create incentives to use CFAs in preference to legal aid, as Middleton recommended?
Why have the Government not accepted Middleton's recommendation that legal aid should be made more widely available for certain types of alternative dispute resolution? What about fixed costs and fast-track proposals? We are told that the unit cost per case in the civil justice system has been growing alarmingly. The Government cannot--or, at least, will not--tell us why. What are they doing to find out why?
Some of the most important aspects of the Woolf reforms come together in the fast track, including criteria for allocating cases to the correct track, earlier directions about how the case will proceed, a strict timetable, automatic sanctions for not keeping to the court's directions and fixed costs for various stages of the case. It is a lot to get right all at the same time. For ordinary people, a real concern is how clients' care will be affected by streamlined procedures. Will clients be consulted more or less? Will they be kept informed?
Mr. Hoon:
If society is paying more for fewer cases, is it not obvious what is happening in court?
Mr. Garnier:
The hon. Gentleman tried that line a moment ago. He gives an answer that he assumes provides the reasoning behind it; the background to that question demonstrates precisely the same problem. Unless he analyses what he is saying and unless he knows the reasons for his assertions, he will not be believed and he will become the incredible Minister.
Middleton advised that the Government should let the fast track bed down before imposing a fixed-cost regime on it. That seems logical, but that advice has been rejected in the rush to get the fast track up and running. This may be a case where speed is inimical to justice. It would be a shame if the fast track floundered because of unnecessary haste, or if it wound up not being as good as it could be for consumers. The fast track needs piloting, or at the very least, a period in which to develop a cost regime, as Middleton suggested.
Mr. Lock:
I am waiting for an explanation of why the hon. and learned Gentleman is proposing, if indeed he is, that we run conditional fees alongside the existing legal aid scheme, and how he proposes to prevent lawyers from cherry picking so that they take the cases that they want with the add-up fees, but the cases that they do not want have to be financed by the taxpayer. Is that really what he is suggesting?
Mr. Garnier:
The hon. Gentleman fails to understand that we are debating the Government's proposals. If he wants to support them, he will in due course no doubt make a wonderful speech giving the justification for his support.
Mr. Andrew Robathan (Blaby):
I am grateful to my hon. and extremely learned Friend for giving way. He is making some very good points. As he will know, I am
Mr. Garnier:
My hon. Friend may not be a lawyer, but he is a man of considerable perspicacity. The Government have been so overcome by U-turns that their whole policy machine has become strangulated. I fear that we will have to put up with more of this over the next few years.
The Government have rejected Middleton's advice on small claims. Middleton was clear that the present limits on small claims in the fast track should be raised only when the system had proved itself. There are two key elements to small claims: the soundness of the procedure itself, and the help and advice that people need to use it effectively. The higher the small claims limit, the better the procedure needs to be and the more help people will need to use it.
Because, at present, people have access to only very limited help with a small claim, it is hardly surprising that Professor Baldwin's research showed that, although satisfaction is high, the help goes mainly to middle-class individuals suing other middle-class individuals. He said that the genuinely poor made few appearances in small claims hearings.
Further research by Professor Baldwin, soon to be published, will examine the impact of raising the small claims limit from £1,000 to £3,000 last year. Until we know that the procedure is being used happily by a wide range of people, it is difficult to see the logic of rejecting Middleton's advice to proceed with caution.
Raising the small claims limit so dramatically, at the same time as withdrawing legal aid from all money and damages claims, will inevitably produce a sharp increase in the number of litigants in person. The civil justice system needs to be ready for them. Both Woolf and Middleton were very clear that more help and information, not less, were needed by court users, and especially litigants in person. Do the Government have any idea of the cost implications?
Perhaps most importantly, Middleton did not recommend wholesale removal of money and property claims from civil legal aid. The Bowman review of the civil division of the Court of Appeal was published in September in response to a request from the previous Lord Chancellor in October 1996. That report--a document which repays careful study--recommends ways of improving the way in which the civil division works, so that it can deal with its case load more quickly and give better access to justice.
The Lord Chancellor's proposals for the reform of legal aid were announced in Cardiff on 18 October. He began by saying that he was there to announce an integrated package of proposals, on every one of which
The only problem is that the Lord Chancellor's spin doctors cannot have been much good, because headlines such as that in The Mail on Sunday
Unfortunately, the text of the article says:
The Lord Chancellor does not appear to want to hear others' views, if The Times on Wednesday is anything to go by. It says:
"I intend to consult the profession."
He said:
"Change is on its way, and the best thing to do with change is to manage it through consultation and in a spirit of consultation."
21 Nov 1997 : Column 551
Have we seen, or rather felt, the spirit of consultation moving among us? Has a great trumpet blast been heard announcing that the consulter general has come among us? I think not.
In the days before the Cardiff speech, the Government propaganda machine was letting selected home affairs correspondents know what the Lord Chancellor had up his sleeve, but he clearly did not think it appropriate to let legal correspondents know, let alone take the leaders of the profession or other interested consumer groups into his confidence.
"Consumer anger at 'bully boy' reforms"
followed. There is a rather endearing little picture, with the caption "Accused: Geoffrey Hoon", showing the Minister looking like a dog food salesman, perhaps, or someone who is saying, "Not me, guv, I'm innocent."
"Ministers are facing a consumer group backlash against plans to shake up the legal aid system.
I congratulate him on his promotion, although it is not as grand as the way in which he answered a written question the other day, assuming that he was, in fact, the Lord Chancellor; perhaps by next week he will be down to Parliamentary Secretary, Lord Chancellor's Department, and there will no doubt be a party to welcome him and celebrate that great move--
Deputy Lord Chancellor"--
"Geoff Hoon has been accused of bullying tactics in private meetings with campaigners over the most sweeping reform of the legal aid scheme since its introduction 50 years ago . . .
If that is the result of the spin doctors' efforts, it is quite an achievement.
An unprecedented alliance of the Law Society, the Bar Council, the Consumers Association, National Consumers Council, Justice, the Legal Action Group, Action for Victims of Medical Accidents and Liberty has lined up in favour of major changes to the proposed reforms."
"Undeterred by opposition from the legal profession and the consumer lobby, they plan to issue a consultation paper in January or February that will carry first details . . .
that is, today--
On Friday"--
"the Government will deliver a strong message in a debate in the Commons that lawyers' opposition to the reforms stems from their fear of losing a former subsidy. A senior official said: 'I don't think any profession would be comfortable with having a subsidy taken away from it.' Solicitors had been able to run cases 'win or lose' he said.
21 Nov 1997 : Column 552
Ministers and officials reject claims by the Law Society, the Bar and consumer groups that changes would hit the poor and that the insurance market was not ready to provide affordable premiums for cover that people would need to protect themselves against paying an opponent's costs. Officials are in talks with several insurance companies.
They insist that unless the Government shows that it is determined, the insurance market will not step into the gap. 'Nothing less than radical change and being resolute will ensure this happens,' one said. Ministers will make it clear that until they can control the legal aid budget, they cannot free funds for a community legal service or for areas such as industrial tribunals."
There we have it: the result of the consultation is announced in The Times before we have even had this debate.
The Minister attracts opprobrium not only from The Times and The Mail on Sunday. An editorial in the November 1997 edition of Legal Action, not a magazine which naturally favours the Conservative party, says--[Interruption.] The Minister laughs, but this is a serious social issue. Perhaps we can draw some conclusions about his and his officials', as well as the Lord Chancellor's, attitude to the whole question. The editorial says:
"Examining, actually, what Lord Irvine said and meant is obscured, here as elsewhere, by excessive spin doctoring. Media manipulation may have won Labour the battle of the election, but it is in danger of losing the war of government. Ministers trailed their pre-release interpretation of policy in the speech to the Mail on Sunday and the Times, a well-rehearsed routine under the previous administration. To this was added intervention by Number 10's own press office on the day before Lord Irvine spoke. Presumably, the need to massage the message accounted for a surely ill-judged silence after the speech was delivered. On the edge of discourtesy, Lord Irvine refused to join a question and answer session after his speech, for which he had been booked, or even to give a press conference. Thus we are left with the pre-match hype and the text of the speech. . .
The editorial goes on to refer to Philip Stephens, who wrote
This was structured around the presentationally challenging theme that allowing lawyers to double their fees for a wider range of litigation was a victory for middle-income Britain's access to justice."
"in the Financial Times that Lord Irvine's proposals were 'not so much New Labour as Old Treasury'."
It continues:
"The introduction of a requirement to take account of available resources appears to be in flat contradiction to his previous views. He then objected to proposals under which 'legal aid would cease to be a benefit to which a qualifying individual is entitled [and] . . . in practice, become a discretionary benefit'."
What is wrong with the legal aid system? The Lord Chancellor says that it has become a leviathan with a ferocious appetite and that litigation is too expensive, for both the legally aided and the unassisted litigant. He says that he wants to throw open the doors of the justice system to all who want to enter and that the civil justice system should be open to everyone, not only the very rich and the very poor. He says that expenditure on legal aid in 1990-91 was £682 million and that only six years later it had gone up to £1.4 billion, an increase of 115 per cent.
| Next Section
| Index | Home Page |