| Previous Section | Index | Home Page |
1.59 pm
Mr. Gareth Thomas (Clwyd, West): I declare an interest not as a fat cat but as someone who practised at the provincial Bar for a number of years. I have also had experience in the international insurance industry, which may interest my hon. Friend the Minister.
I well understand why the Government have embarked on the process of the long-overdue reform of the civil justice and legal aid system. If there is not exactly a crisis of public confidence in that sphere, there is real concern that the civil justice system fails adequately to fulfil its role as a guarantor of people's rights. People are also concerned that legal aid does not fulfil the function of providing access to justice to an enormous number of people. The Lord Chancellor is right to concentrate on the need to correct the imbalance in the system so that middle-income as well as low-income Britain has access to justice.
The Lord Chancellor is also right to test alternative arguments, including those for the status quo, against the principle that legal aid should exist only to remedy the imbalance between the poor and the better off--I am sorry to use those pejorative terms--not to put the poor in a privileged position. However, that principle, which the Lord Chancellor has chosen as a litmus test, should not be adhered to slavishly. The proposals give every indication of an over-dogmatic adherence to that principle at the expense of justice.
In the circumstances, the Government have rightly judged that the wider public interest demands that the reforms should be decisive and far reaching, although whether they should be as swift and far reaching as suggested by the Lord Chancellor is another matter. Although the Government are right to exercise healthy scepticism when dealing with the legal profession's claims in that respect--experience teaches us that scepticism can be the right approach--I am bound to conclude that the concerns expressed by both sides of the
legal profession as well as by consumer groups are well founded in certain respects. I perceive that the Lord Chancellor has been doing his best to seek to establish a correct balance between taxpayers' right to expect efficiency and value for money and, as befits a Labour Lord Chancellor, concern that the poorest and most vulnerable in society have better access to justice.
I welcome the Government's commitment to establishing a community legal service and I echo the sentiments of my hon. Friend the Member for Salford (Ms Blears) in that regard. It is an opportunity to focus attention on areas of law that have been overlooked, such as social welfare and possibly tribunal representation. I also welcome the commitment to introduce a fast-track procedure for claims of up to £15,000, which will benefit many people of modest means whom I have represented over the years. The removal of delay and complexity, which are so much part of our legal culture, can only benefit the majority of litigants.
The Government's commitment to retain an arbitration limit of £1,000 for personal injury claims is welcome, as is their commitment to extend exemptions from court fees to those in receipt of income-related job creation allowance, family credit and disability living allowance, and their refusal to countenance contributions to legal fees for those on income support.
We must not forget that legal aid will continue to be available for all civil cases that do not involve money or damages claims. Those positive factors, which must be put in the balance, are consistent with the Government's overall commitment to end social exclusion and build a fairer society. But--and this is the critical question--how does the proposal to remove legal aid at a stroke for all money and damages claims square with that principle? I do not say this lightly or with pleasure, but I have grave concerns about whether these proposals can adequately be consistent with our commitment to a fairer society.
The best approach for the Government to adopt is that in Sir Peter Middleton's report. He said that it was right and proper to allow a certain degree of discretion to the Legal Aid Board. He said:
I echo the comments of many hon. Members on both sides of the House in saying that the Government have a positive approach to reforming legal justice and legal aid, but there is substantial scope for caution and reconsideration.
2.6 pm
Mr. David Lock (Wyre Forest):
Thank you for calling me, Mr. Deputy Speaker. I declare an interest as I was a barrister for 12 years. Due to the delays in legal cases, I have one or two hanging over, but I hope that the Government's proposals will ensure their speedy disposal.
This is a debate about civil justice during which I have heard many attacks on the Government's proposals. One should only attack if prepared to defend the status quo or put up an alternative. It may be apposite to quote, "You are defending the status quo ante-bellum." We appear to be in something of a war.
The present position cannot be supported. Legal aid is available for personal injury, but not for unfair dismissal; for labour disputes, but not welfare rights; for mental health tribunals, but not social security appeals; for a commercial dispute, but not for a family at an inquest. If we had to start from the beginning and devise a system for where to place legal assistance, we would not end up with the current system.
There is enormous merit in the Government's proposals, especially on conditional fees. I want to discuss three aspects of them to try to advance the debate--first, weak cases; secondly, complaints about conflicts of interest; and thirdly, insurance.
On balance, is it in the public interest for weak cases not to come before the courts? My first reaction as a lawyer, who has won a few cases that I thought were losers, and lost a few more that I thought were sure-fire winners, was that all cases should be litigated, but, on balance, I think that I was wrong.
For whose benefit are weak cases run? Is it for the litigants? I do not think so. Their hopes are raised, but in the vast majority of cases they are then dashed. Let us not forget the strain of being a litigant, especially an unsuccessful litigant. Litigation dominates people's lives, saps their energy and prevents them from getting on with their lives. If they lose, their heartache was for nothing. Taking on weak cases is rarely for the benefit of weak litigants.
Secondly, defendants have rights, too. The prime example of that is the national health service. The money spent in litigation would be better spent in other ways. With respect to my hon. Friend the Member for Great Grimsby (Mr. Mitchell), I believe that medical negligence litigation is a very blunt instrument for improving practice in the NHS; there are much better ways.
Thirdly, other litigants will suffer if weak cases are pursued. Weak cases clog up the courts and cause delays and every other litigant pays the price. They are the cases that are hardest to settle, so they take up a disproportionate amount of court time.
Fourthly, and most important, unmeritorious litigation promotes a litigation culture. All of society pays a price for that. The professional seeks a second opinion, not because it is a professional view, but because of a fear of lawyers. Access to justice is important, but we pay a heavy price if we are trigger-happy with writs.
Another objection that is made to conditional fees is that there is a conflict of interest for the lawyers. It is said that lawyers lose their objectivity because their financial interests are linked to the success of the claim. That objection is misconceived. Lawyers already have a massive conflict of interest every time that they advise the
Legal Aid Board whether a case should or should not be financed. The duty to the client and the duty to Legal Aid Board are in conflict, as every practitioner knows. Frequently, the client wins and the Legal Aid Board does not.
Lawyers also have a direct personal financial interest in the advice that they tender to the Legal Aid Board because, if legal aid is granted, the lawyer who advises gets the fees. Do lawyers discharge their duty? I believe that in most cases they do, and they manage to balance their own financial interest with the financial interests of the Legal Aid Board.
I see no difference in principle between that and the conditional fee approach. All that conditional fees do is to substitute the advice to the Legal Aid Board with the advice to the firm's finance committee. Lawyers are in the business of running cases and it would be a strange case of which the lawyer could say to the Legal Aid Board, "This case is worthy of funding because it has a sufficiently good chance of success" but could not give the same advice to the firm's finance committee or to his or her partners.
The next objection is that litigants will not be able to afford insurance against an adverse finding of costs and the problem of non-lawyer disbursements--the matter raised eloquently by my hon. Friend the Member for Hastings and Rye (Mr. Foster). The Government's answer to that objection is that lawyers will learn, as part of the new culture, to finance those costs as part of the opportunity costs of taking on litigation. I have sympathy for that approach, but I foresee problems in the short term.
In the words of Mr. Jonathan Swift, I have a modest proposal. While the culture is changing and the financial service industry is learning to assess the risk, might legal aid for money claims be retained solely for two purposes? The first purpose would be to fund non-legal disbursements--essential medical reports, engineers' reports and so on. I understand that well in excess of 90 per cent. of legal aid money is paid to lawyers, so this preservation should not put undue strain on the legal aid budget.
The second--and, I emphasise, temporary--extension that I seek is that the existing cost protection should be left in place for legally aided plaintiffs. People have the benefit of knowing that their lawyers believe in the litigation because they are taking it on a conditional basis. However, for the short time of the exemption, if they were to lose, they would not suffer the effect of an adverse costs ruling--as they do under the present system. That would enable us to avoid insurance products not being available in time or being available only at extreme cost because the full effect of the Woolf reforms and the limitation of costs--and so the insurer's limitation of exposure on costs--had not worked its way through the system or was not fully appreciated by the underwriters.
"One approach would be simply to remove those areas of work for which conditional fee agreements are most suitable (e.g. most personal injury work) from the scope of the legal aid scheme. In practice, however, it would prove difficult to define the appropriate categories, and within any definition there could conceivably be cases that ought to be pursued but whose individual circumstances made them unsuitable for a conditional fee."
Time does not allow me to explore the arguments further as I know that other hon. Members are anxious to speak. The Government should look again at Sir Peter Middleton's report and adhere to the principle of flexibility in order to do justice in individual cases. There must be greater consultation. The Government should adopt a more cautious approach, especially on the issues of affordability and availability of insurance.
| Next Section
| Index | Home Page |