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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
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.
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.
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
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
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.
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