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Delegated Legislation Committee Debates

Draft Legal Advice and Assistance (Scope) (Amendment) Regulations 1999

Second Standing Committee on Delegated Legislation

Wednesday 15 December 1999

[Mr. Barry Jones in the Chair]

Draft Legal Advice and Assistance (Scope) (Amendment) Regulations 1999

4.30 pm

The Parliamentary Secretary, Lord Chancellor's Department (Mr. David Lock): I beg to move,

    That the Committee has considered the draft Legal Advice and Assistance (Scope) (Amendment) Regulations 1999.

I welcome you to the Chair, Mr. Jones, for what I hope will not be an extensive debate this afternoon.

The regulations were laid before the House on 1 December 1999. They are necessary to underpin contracts that will replace a substantial part of the existing legal aid scheme, with effect from 1 January 2000. The Legal Aid Board has announced awards of around 5,000 general civil contracts to solicitors' firms and more than 330 contracts to not-for-profit agencies. In future, these contracts will be the exclusive method of delivering legal aid for the categories of work they cover. Depending on the expertise of each contractor, contracts can cover all advice and assistance in civil matters, and representation in family and immigration cases.

Contracting is central to the Government's plans to improve quality, target priority needs and control the cost of publicly funded legal services. All contracts will go to providers of proven quality and expertise. To win a contract, a provider must have passed the Legal Aid Board's quality franchise audit on a full or provisional basis. Provisional franchisees must meet the full standard within one year.

In order to control cost, each solicitor's contract specifies the number of new advice and assistance cases that the provider is authorised to start in the following year. That number could be increased during the year to meet unexpected demand—the Legal Aid Board has retained a reserve for this purpose in each category. On the other hand, the number can be reduced if a provider's average case costs increase, to ensure that the total cost of the contract remains within budget, or if it is clear that the provider will not start the number of cases allowed in the contract.

The effect of the Legal Advice and Assistance (Scope) (Amendment) Regulations 1999 will be to amend the Legal Advice and Assistance (Scope) Regulations 1989 by excluding much of part III of the Legal Aid Act 1988. Part III currently covers all advice and assistance, including assistance by way of representation.

From 1 January 2000, legally aided advice and assistance in civil matters will be provided through the Legal Aid Board's civil general contracts. These contracts will be governed by part II of the 1988 Act until the Access to Justice Act 1999 takes effect on 1 April 2000. Part II provides the free-standing power for the Legal Aid Board to make contracts to secure advice and assistance, and representation, provided that the Lord Chancellor authorises them to do so by direction. The entitlement to funding and protection from costs available under the other parts of the Act does not apply to services procured under part II. Section 8(3) of the 1988 Act provides for regulations to exclude from part III advice and assistance of all descriptions or of any prescribed description. The regulations before the Committee today, with a few exceptions, will exclude most civil matters from part III. The purpose of that is to ensure that only those with contracts under part II will be able to provide advice and assistance in accordance with their contracts.

During the debate on the regulations in the other place earlier this week, the question was asked why the contracts and related changes are being introduced under the Legal Aid Act, rather than waiting until the Access to Justice Act is brought into force. The answer is because the timetable for the contracting process, culminating on 1 January 2000, was set and published by the Legal Aid Board well before the Access to Justice Act/Bill was passed. That process has involved extensive consultation at every stage, and it has required a great deal of work on the part of thousands of solicitors' firms and hundreds of advice agencies in the voluntary sector, in order to achieve the franchise standards and to apply for contracts. The firms and agencies that undertook the work and have been awarded a contract have every right to expect those contracts to take effect on 1 January, and to expect that they will be the exclusive means of providing legally aided advice and assistance.

In explaining the exceptions, I shall deal first with assistance by way of representation, or ABWOR, as it is known. The regulations leave most assistance by way of representation unaffected, so it will continue to be provided under part III. Advice by way of representation in family proceedings is retained because it is necessary to ensure that the cost protection under section 12 continues tor such cases. That work will none the less be restricted to holders of a family contract by virtue of the Legal Aid (Prescribed Panels) (Amendment) Regulations 1999, which the House passed last week. Those regulations also apply to representation in family and immigration cases, which will be provided by contracts under part IV.

Most other advice by way of representation relates to criminal matters or to matters that, while technically civil, are essentially criminal in nature—for example, cases involving a risk of imprisonment for failure to obey a court order. Those cases will be funded as part of the criminal defence service from October next year. Meanwhile, legal aid will remain.

Two categories of advice by way of representation are excluded from part III by regulation 7. Advice by way of representation before mental health review tribunals is excluded because in future that will be covered by contracts under part II. Assistance by way of representation for proceedings under the Fire Precautions Act 1971 is excluded altogether. Funding for those cases, which concern the regulation of commercial premises, is not justified under a scheme that is intended to help individuals.

The regulations also provide for some green form advice and assistance to remain within the scope of part III, that is, advice and assistance relating to criminal matters, clinical negligence and personal injury.

Criminal advice and assistance will be preserved until the criminal defence service comes into being in October 2000. It is available for individuals who are arrested and held in custody or who are involved in criminal investigations or proceedings—the regulations set out a list of proceedings that are defined as criminal proceedings for that purpose. Again, that includes matters that are technically civil but which will in due course be funded by the criminal defence service—for example, proceedings relating to anti-social behaviour orders and judicial reviews arising from criminal proceedings.

Advice and assistance will also continue to be available under part III for clinical negligence cases. It will continue to be restricted to franchised solicitors under the Legal Aid (Prescribed Panels) (Amendment) Regulations 1999 until 1 April 2000, when the Access to Justice Act 1999 will take effect. At that stage, the existing arrangements will be incorporated in the general civil contracts held by relevant franchisees.

Similarly, personal injury work is excluded from the scope of the contracting regime to be introduced on 1 January 2000. Until 31 March, any solicitor will be able to take on personal injury cases. On 1 April, the contract specifications will be amended to cover advice, assistance and representation in residual personal injury cases—that is, cases that are not excluded from the scope of funding by schedule 2 of the Access to Justice Act 1999 because they do not relate to negligently caused injury. They include, for example, cases where the client alleges that he was assaulted by the police while in custody. Personal injury franchisees with contracts will also be able to apply for additional funding in support of conditional fee agreements in exceptionally expensive personal injury cases. The Lord Chancellor will issue a direction allowing those cases, along with cases that raise issues of wider public interest, to remain within the scope of public funding.

The Committee will notice that regulation 5 refers, among other things, to the making of wills. The Lord Chancellor also intends to make a direction authorising funding under the 1999 Act to assist vulnerable clients to make a will. That will cover broadly the same categories for which legal aid funding is available now. The Legal Aid Board's contracts will provide for that to take effect from January 2000.

Contracting will provide a guarantee of service quality, help us to target priorities and promote value for money. The regulations help to underpin the contracting process. We are planning to spend £202 million on advice and assistance next year, compared with about £180 million this year. It is important that that money is spent wisely.

Our reforms will be good for the client, because they assure him or her of a quality service; good for the taxpayer, because they will help to control cost and to improve value for money; and good for competent providers as they will provide greater certainty about work load and cashflow than under the current demand-led scheme. I commend the regulations to the Committee.

4.39 pm

Mr. Nick Hawkins (Surrey Heath): I join the Minister in welcoming you, Mr. Jones, to the Chair.

When provisions such as those before us have been debated in another place—as the regulations were on 13 December—and come before a Standing Committee of which I am a member, I always feel a sense of déjà vu when I listen to the Minister's opening statement with the Hansard of another place in front of me. I refer the Minister to the questions that my noble Friend Lord Kingsland posed in that debate to Lord Bach, who spoke for the Government. I do not want to criticise Lord Bach, who is an old friend from my days on circuit, but I should say that he concentrated on an amendment tabled by the noble Lord Goodhart on behalf of the Liberal Democrats and on one or two other contributions to the short debate, but did not, deal fully with the points made by Lord Kingsland. I will perhaps share with the Minister my sense of déjà vu by referring to those points.

As Lord Kingsland said, we are concerned about whether the Lord Chancellor's Department will meet the targets that it has set itself. It is perhaps unwise of any Government who say that they are going to save the taxpayer money to set targets that start on April fool's day at the beginning of the new millennium. Lord Kingsland asked:

    ``What procedures has the Lord Chancellor's Department put in place to ensure that the targets are met?''—[Official Report, House of Lords, 13 December 1999; Vol. 608, c.88.]

He was referring to the Government's own targets. Considerable concern has been expressed about whether the solicitors to whom the Government have given franchises will have a sufficient range of expertise and about whether their geographical spread will be sufficient, especially in rural areas. I have been made aware of the Law Society's concerns, about which the noble Lord Phillips of Sudbury spoke in another place, and I shall turn to them in a moment.

The Opposition and the Liberal Democrats shared anxieties about the Bill that became the Access to Justice Act 1999. We suggested that the proposals were far more to do with the Treasury's desire to cut spending on legal aid than with genuine access to justice. It would not be proper to fight those battles again, and you, Mr. Jones, would stop me if I tried to do so, but there is continuing concern.

I must be a little careful about the rules on sub judice matters, but I should like to refer to an application for judicial review brought by a small two-partner firm based in south London. Mackintosh Duncan, which specialises in community care, mental health and welfare matters, has not been awarded a franchise. I can speak about information concerning the application that is in the public domain and which has been reported in the press. Leave has been given for judicial review, but the hearing is not due to begin until 12 January, so it is appropriate for me to mention briefly information reported by no less a person than the legal editor of The Times in respect of the judicial review challenge, which the Law Society supports. Hon. Members will know that the Law Society represents no fewer than 75,000 solicitors in England and Wales. The Times report states that Mackintosh Duncan

    ``has not been given any assurance that it will obtain a contract to offer mental health and community case law''

services. One of the main reasons for that is that the firm

    ``was established only in July, after the January deadline for membership of the group of firms which intended to bid for contracts.''

As a result, the firm

    ``will be forced to refer clients to contracted firms, which may not have the same expertise.''

The firm's partners are undoubtedly long-standing experts in their field. According to The Times report, the Lord Chancellor's Department has accepted

    ``that more than half of the 11,000 solicitors' offices in England and Wales now offering some legal aid work will be forced to stop doing the work from next month.''

The Government's figures show that the number of legal aid firms will be more than halved. Those of us who have represented sparsely populated rural areas are bound to be concerned that there might not be a sufficient range of firms to offer legally aided assistance such as advice and representation. The concerns expressed in another place remain valid; I hope that the Minister will address some of them when he replies.

The Law Society has made specific points. It remains opposed to much of the Government's proposed contracting regime. It has always been opposed to a regime the principal feature of which was that it was cash limited, arguing that that would not give an entitlement to contract to all the firms that passed the required quality standard. Our concern ought to be for all our constituents. A firm that provides legal advice of the required quality, and is prepared to offer legally aided advice and assistance, should be able to do such work. We remain concerned that the Treasury's view lies behind the changes, rather than public interest. The Government are keen to say that they are concerned about the needs of all the people; in this example, they have clearly ignored the needs of all the people. The Government are concentrating on the needs of all the Treasury.

The Law Society has noted that the contract offers were sent out only on 26 November, and therefore did not arrive at solicitors' offices until the week of 29 November. The offers had to be accepted by 15 December—less than three weeks after receipt—and the contract had to be accepted before there could be a review, even if the offer was somehow flawed or was otherwise unacceptable. Had contract holders sought a review, they would have had to start work under their contract before knowing their final position.

The final structure and make-up of the contracting scheme will not become clear for some time. The Law Society reports that the Legal Aid Board has so far let only 50 per cent. of the work in important areas of law, such as social welfare, that could be done under contract. Much work has yet to be allocated to contract holders or to new entrants to the scheme. As the Law Society has said, unacceptable uncertainty has been created.

The Minister will be aware of the problems in relation to immigration; his noble Friend Lord Bach has conceded there might be such issues. An under-supply of quality practitioners has been a problem for several years. The Law Society has noted that many of the firms willing to take contracts in that important area of the law have received offers for significantly less work than they currently do. That cannot be in the interests of our constituents.

Substantial concerns remain about whether the Government are rushing the measure through at the behest of the Treasury and whether they would have been wiser to have allowed longer time limits and taken more care to allow all those who could offer quality assistance to do so. Why was there such rush and indecent haste?

The debate will, no doubt, be short but important. I shall not go beyond the scope of the order, Mr. Jones, because I know that you would stop me if I did so. However, everyone knows that the Access to Justice Act, in so far as it affects the work that solicitors may do and whether they will be offered contracts, will also have a knock-on effect on members of the Bar, especially those in provincial chambers, which the Minister and I know well. There has been much correspondence involving leading legal correspondents of the broadsheet press, such as Frances Gibb, the legal editor of The Times. I hope that the Minister will be able to address the concerns of many members of the Bar, including heads of chambers such as Francis Gilbert QC of Exeter chambers and Elisabeth Hailstone of Bristol chambers, about the Lord Chancellor's misrepresentation of the legal aid earnings of members of the Bar. The Minister knows from his experience in chambers that some of the Lord Chancellor's figures misrepresent the true position of members of the Bar. Instead of dealing with the facts, he is after cheap headlines that suggest that the Government are cutting the amount of taxpayers' money that is spent on legal aid. Many senior members of the Bar, including the heads of provincial chambers and some London chambers, have expressed concerns about the Lord Chancellor's misrepresentation of the issues. The Minister will have seen some of the correspondence, not least in The Daily Telegraph on Monday.

As this may not be the right time to debate those concerns, perhaps the Minister will write to Committee members and place correspondence in the Library on the points raised. There are serious concerns on behalf of the citizens of this country. The Law Society, which is the solicitors' professional body, is worried about the way in which the regulations are being rushed through and members of the Bar are worried about the Government's gross misrepresentation of their legal aid earnings. No doubt the Minister will explain that to the Lord Chancellor. The Government need to consider whether they should take more time and delay the implementation of some of the restrictive measures.

4.51 pm


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Prepared 15 December 1999