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'(6) Regulations made under subsection (5) may in particular authorise the exercise of the functions of any court or tribunal by any member or officer of that or any other court or tribunal.'.--[Mr. Vaz.]
Clause 25
Amendments made: No. 20, in page 17, line 29, at end insert '(including different areas)'.
No. 21, in page 17, line 32, leave out '(c)' and insert '(da)'.--[Mr. Vaz.]
Clause 26
Amendment made: No. 22, in page 18, line 5, after first 'and', insert
', subject to any time limits which may be prescribed,'.--[Mr. Vaz.]
Schedule 1
The Solicitor-General: I beg to move amendment No. 38, in page 65, line 28, leave out
', with the approval of the Treasury,'.
Mr. Deputy Speaker: With this, it will be convenient to discuss Government amendments Nos. 39 to 44.
The Solicitor-General: You will be pleased to know, Mr. Deputy Speaker, that the purpose of these seven amendments is to remove the requirement for Treasury consent or approval to arrangements for the pay, pensions and compensation of members and staff of the Legal Services Commission.
The amendments reflect the fact that it is no longer the practice for new legislation to make pay and pensions provisions for non-departmental public bodies subject to Treasury consent. The commission's pay and pensions arrangements will continue to be subject to the approval of the Lord Chancellor, who will consult the Treasury as appropriate on issues affecting spending and general policy on public pay, pensions and compensation terms.
The amendments are technical, designed to bring the relevant provisions in line with current Treasury policy.
Amendment agreed to.
Amendments made: No. 39, in page 65, line 32, leave out
No. 40, in page 65, line 33, leave out
No. 41, in page 65, line 46, leave out
No. 42, in page 65, line 49, leave out
No. 43, in page 66, line 16, leave out
No. 44, in page 66, line 41, leave out
Mr. Robert Marshall-Andrews (Medway):
I beg to move amendment No. 95, in page 68, line 32, at end insert
Mr. Deputy Speaker:
With this, it will be convenient to discuss amendment No. 99, in page 68, line 32, at end insert
Mr. Marshall-Andrews:
The purpose of the amendment is to retain legal aid in its present form for actions for damages for personal injury for the classes of people referred to in the amendment.
If the Bill is to become an Act in its unadorned and unamended form, the classes of people to whom I have referred will have no recourse to legal aid for personal injury cases. In all cases, legal aid for actions for personal injury will cease to exist. No matter how weak or disabled the plaintiff; no matter how serious the injury; no matter how powerful the wrongdoer; no matter how culpable or deliberate the wrong, there will be no legal aid for those people.
This is a reforming Bill with which, in many respects, I agree. Whatever happens to the amendment--I sincerely hope that it will be agreed to even if the Government do not accept it, which I sincerely hope they will--I will support the Bill. There are many aspects of it that I have no difficulty whatever in supporting. I say straight away that the provision of legal aid has become, in certain circumstances, less than perfect. There have been examples in which it has been abused, and there are ways in which it is far too expensive, some of which the Bill redresses.
There is one aspect of the legal aid system to which that does not apply--the element that funds personal injury cases. Do not take that from me, Mr. Deputy Speaker--under any circumstances. I wish to give hon. Members the full benefit of an opinion expressed in 1996:
We do not have the Lord Chancellor here, more's the pity. That is something on which I have a certain view that I have expressed from time to time. He is in another
place. We do have my hon. Friend the Parliamentary Secretary here, and I join in the paeans of praise and congratulations to him. What a joy it is to see him on the Front Bench. However, it is not the same. If we are to penetrate what has happened since 1996, we have look through a prism darkly to find out why the Lord Chancellor--the font of the legislation--should have done such a conspicuous volte face.
It cannot be anything to do with the statistics for this part of the legal aid system, as they speak for themselves. Legal aid in personal injury cases funded 75,000 cases last year; those that were funded recovered £502 million in damages. The cost of that was £224 million. However, 86 per cent. of that was recouped as costs. The cost to the Exchequer of this noble public service was £34 million.
If one takes into account the VAT that the lawyers paid back into the Exchequer, the net cost of this public service after VAT was recouped--described in the way I have just outlined by the Lord Chancellor--was £1,481,936. If one then takes into account the money clawed back by the Exchequer from damages that had been paid out in welfare payments to those who were successful plaintiffs in these cases, there is a net profit to the Exchequer of £68 million.
The one argument that does not stand up--I expect I am wasting my breath, as I doubt whether the Parliamentary Secretary will advance it--is that the reform will bring a penny piece back into legal aid which can be reallocated or retargeted to other areas.
Why are we faced with this Bill? Why is this protection to be taken from the particularly vulnerable categories of people who are referred to in the amendment? What has occurred has been the advent of conditional fee agreements. Conditional fee agreements were introduced in 1995 as an experiment. They are more usually, but inaccurately, referred to as no-win, no-pay agreements.
The advantage is that lawyers will bear the risk of litigation, and if someone does not win and they do not get their costs back from the other side, the litigant does not pay. No-win, no-pay litigation; something against which the legal profession had set its face for centuries, because it was felt that it was unethical--or at least unwise--that lawyers should have an interest in their clients' damages.
A system was put into effect in 1995 with various checks and balances. Whereas I acknowledge that there are aspects of conditional fee agreements which may be beneficial to many people--particularly to middle-income England--there are aspects of conditional fee agreements which are positively dangerous to people with disabilities. And there are many other aspects of conditional fee agreements which are, as yet, untried.
If one is injured, rendered disabled or maimed by accident or design, instead of obtaining legal aid--which would be one's right if one had a prima facie case and a solicitor available to take the case--it is now necessary to trail the coat of one's damages from solicitor to solicitor until it is possible to find one who is holding the right portfolio of risk to take the case. The right portfolio of risk in any individual case will depend on the other cases that any individual solicitor has in his portfolio. That will make it necessary to move from solicitor to solicitor to find one who can take the case.
It is true that there have been about 30,000 cases under conditional fee agreements, and there is no reason to suppose that they are manifestly unsuccessful, but the
only authoritative study pointed out immediately that the overwhelming preponderance were small cases. That is not surprising, because lawyers will generally take small cases in which the risk is limited.
What happens when the avalanche of the 75,000 cases currently funded under legal aid falls into the system? Whether the provision will exist to cope with the most complex and difficult of those cases is a complete imponderable. The study by the Policy Studies Institute at the end of 1997 concluded:
', with the consent of the Treasury,'.
', with the consent of the Treasury,'.
'and consent of the Treasury'.
'and the consent of the Treasury'.
'and consent of the Treasury'.
', with the consent of the Treasury,'.--[Mr. Vaz.]
'and actions brought by or on behalf of children under 18, patients within the meaning of the Mental Health Act 1983, persons with disabilities within the meaning of section 1(1) of the Disability Discrimination Act 1995 and persons in receipt of Income Support, save that services shall not be funded if the Commission is satisfied in any individual case that a conditional fee agreement is available.'.
'save where compelling reasons exist'.
"Supporters of legal aid must never seek to emphasise that this is a highly successful public social service. In civil cases which reached judgment in 1995-1996, there were judgments in favour of the assisted person in 81 per cent. of the cases. The proportion of cases where there was either a settlement or a judgment in favour was 91 per cent."
The sage goes on:
"Personal injury litigation as a category was 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. It must be remembered that there are a small number of very high-cost cases which account for a large proportion of expenditure."
That ringing endorsement of the legal aid system, and personal injury legal aid in particular--that luminous prose, with whose every word I agree--fell from the mouth of the Lord Chancellor himself in 1996.
"However, on the basis of the evidence currently available, there is serious cause for concern about whether the scheme is operating fairly and consistently. Future research will need to focus on this issue."
There has been no authoritative research since then.
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