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Mr. Marshall-Andrews: I give way.
Mr. Burnett: I was removing my glasses.
Mr. Marshall-Andrews: I am sure that the hon. Gentleman can see the points of the argument far better now and will understand them readily. The picture is clouded rather than elucidated or illuminated by the statistical evidence that my hon. Friend the Parliamentary Secretary places before the House.
I shall not repeat what the hon. and learned Member for Harborough (Mr. Garnier) said about the clear and manifest lack of any coherent or long-term assessment of the effect of conditional fee agreements. I merely summarise that there is no evidence on which a sensible Government could at this stage proceed to a vast or widespread extension of such agreements.
I share with many lawyers the feeling that it is an abhorrence that poor people should have to pay for their lawyers with a proportion of their damages. Even if that proposition were ill founded, it remains true--as is borne out by the Policy Studies Institute report--that not nearly enough research is being done on which it would be possible to carry forward in six months this massive re-assessment in the welfare state.
My next point is, in a sense, philosophical. The welfare state, of which the legal aid system is an essential and integral part, was and is--as Aneurin Bevan, to be topical, frequently reminded us--not free. Nothing is for nothing, remarkably little is for sixpence and the welfare state is and was merely a collective insurance mechanism for the benefit of all, paid for by progressive taxation, to ensure that at the point of need all, especially those in the most need, have redress. For the civil legal aid budget, that simply meant that those who were in need, who suffered from injury or were wronged--the two may be the same--should have redress, and that they should have it without recourse, at the time that they go to law, to their own pockets or the worry that that involves.
Mr. Grieve:
Does the hon. and learned Gentleman agree that one of the strange features of the Government's proposals is the way in which a wedge is being driven between certain categories of private rights, such as money litigation, and other categories of private rights, such as redress on a housing matter? Is it not worrying that, whereas the original principle underlying legal aid was the funding for those in need to assert private rights, we now have state interference, decreeing very subtly that certain categories will receive state support while other people can go to the devil and pay through the nose for their lawyers on the uplift?
Mr. Marshall-Andrews:
I do not want to endorse totally most of the hon. Gentleman's pejorative comments about those things, but I agree that that division is, in essence, pragmatic. Money cases have been singled out for conditional fee agreements because it is more likely that lawyers will take those cases on the CFA than otherwise. There is no philosophical reason and there cannot be a social reason. The decision is entirely pragmatic. Let us face it: if the Government are right, pragmatism is the order of the day.
It is plain to anyone involved in the profession that the change will be a nightmare for those who can ill afford it. I will run through the three stages of the nightmare before concluding. The first stage will be that of obtaining a lawyer, mentioned by the hon. and learned Member for Harborough. Those who are injured, sick or vulnerable, will have to try to discover a lawyer who can take them, depending on that lawyer's risk portfolio. If my hon. Friend the Parliamentary Secretary does not understand that, he misunderstands lawyers and commerce.
Undoubtedly there will be an aggregation of money cases into a certain number of larger firms. They will have an overall aggregated risk assessment and they will know which cases they can and cannot take. A person may arrive at firm A which will not be able to take him. Firm B down the road may be able to do so on a no-fee arrangement. Some will find justice while many others will not. It has already been said eloquently that the people most at risk are those least equipped to shop around the legal profession to find lawyers able to take their cases.
The nightmare does not stop there. A litigant may have a good case and may have been damaged through no fault of his own, as in the case of a child with cerebral palsy. He may manage to find a lawyer prepared to take the case on a no-win-no-fee basis, subsidise the insurance costs and pay the disbursements to medical and other experts out of his own pocket. He may win the case. A similar case was cited by Sarah Leigh in her excellent report on contingency fees which came out last year; she is one of the most eminent lawyers in the field.
A High Court judge may say to the plaintiff, "You are entitled to £1.14 million of compensation which will, as best we can, give you a reasonable life." However, the litigant may then be told that out of that award, which has been carefully calculated to give him justice and redress, £114,000 will be removed for the lawyer, not because the lawyer is greedy, but because the money is needed to subsidise and succour other clients whom that lawyer has on his books because of the aggregate quantity of risk. A child suffering from cerebral palsy, for example, may find himself £114,000 short of the amount to which a High Court judge says that he is entitled and which he needs to live a reasonable life. That is not a rare occurrence; such a case was cited by Sarah Leigh.
I did not seek election to be part of a party that is putting together a proposal that will affect the welfare state and will leave a vulnerable and disadvantaged person in such a position. I refer, of course, to a person who wins a case.
Let us now consider the third proposition--the person who finds a solicitor who will take the case on a no-win-no-fee basis and who then asks for insurance. People must, of course, be insured against the other side's costs, against disbursements and against all the other expenses that litigation involves. In the case of severe medical negligence, the insurance could not be less than £10,000. In addition to that, one has to find the cost of disbursements--say £5,000--which places litigation wholly beyond the reach of the vast majority of people who, in addition to the misery of having a meritorious claim, of having been damaged and disabled and of having their lives ruined through no fault of their own, face the spectre of debt in order to pay for an insurance policy.
I repeat to my hon. Friend the Minister that I did not come to this House and I did not seek a mandate to be here to see such litigants in the welfare state reduced to penury and begging in order to achieve their rights. I have cited meritorious cases which under the present legal aid system would be taken on by us with no problem. I hope that my hon. Friend the Minister will give my observations long and careful consideration before we embark on the route to conditional fees, with all the misery that that is likely to cause.
As a lawyer, I share my hon. Friend's concern about an ever-growing legal aid budget and it is right that those of us who are engaged in the profession should take a responsible view of this potential growth in public expenditure. I commend to my hon. Friend the excellent work done by the Bar Council and the Law Society on the establishment of a contingency legal aid fund. Such a fund would not avoid all the problems that I have mentioned and it would mean that successful litigants in the round would make some contribution towards further litigation, but, based on the general principle of the spread
of insurance across the widest possible body of people, it offers a genuine alternative to the Government's proposals.
I share the concern expressed by the hon. and learned Member for Harborough. I am not talking simply about my initial aversion to the nature of the proposals. I am worried that there is a headlong rush towards a system that will be immutable and which we shall regret over a millennium. Once the principle of this part of the welfare state is abandoned, it will be difficult to pick it up again. I am worried because we are rushing towards the proposals on a six-month time scale with no serious analysis of the existing system.
My hon. Friend the Minister clearly does not share my aversion to the proposed system. He should at least say that this is a matter which deserves much wider consultation and much more time. If we do not have more consultation and more time, we shall be judged by history as having removed from deserving people precisely the rights that they need.
Mr. Deputy Speaker (Mr. Michael J. Martin):
Order. Before I call the next speaker, I appeal to hon. Members to be aware that some of them will be disappointed today. They will be even more disappointed if speeches are long and I ask all hon. Members to take that into consideration.
Mr. Tony Baldry (Banbury):
Let me immediately declare an interest. I am a practising barrister--although I have not done any legal aid work in the past 10 years and, given my particular area of specialism of contentious and non-contentious construction law, I do not anticipate doing any in the foreseeable future.
11.57 am
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