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Session 1999-2000
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Delegated Legislation Committee Debates

Draft Legal Aid (Functions) Order 2000, and the Draft Legal Aid (Prescribed Panels) (Amendment) Order 2000

Third Standing Committee on Delegated Legislation

Thursday 13 July 2000

[Mr. Jim Cunningham in the Chair]

Draft Legal Aid (Functions) Order 2000, and the Draft Legal Aid (Prescribed Panels) (Amendment) Order 2000

4.30 pm

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

    That the Committee has considered the draft Legal Aid (Functions) Order 2000.

The Chairman: With this it will be convenient to consider the draft Legal Aid (Prescribed Panels) (Amendment) Regulations 2000.

Mr. Lock: I welcome you to the Chair, Mr. Cunningham. I anticipate that these proceedings will be reasonably brief.

The Legal Aid (Functions) Order 2000 is one of a series of pieces of secondary legislation designed to allow the Legal Services Commission to enter into contracts for the legal services of both solicitors and barristers in very high-cost criminal cases. The order authorises the commission to determine and authorise the work to be carried out, the costs and the method of payment of such costs in respect of representation provided by means of a high-cost case contract. A high-cost case is designated as a case which, in the estimation of the commission, would be likely to last 25 days or more at trial, or where the total costs for any defendant, or group of defendants, represented by the same firm of solicitors amount to £150,000 or more. That figure includes the costs of counsel's fees and any disbursements in the case.

The intention in providing for individual case contracts in high-cost cases is to exert appropriate control over the money spent and the work done in such cases. Currently, the top 1 per cent. of cases consume approximately 40 per cent. of the whole Crown Court legal aid budget. It is essential that the expenditure of such large sums of money is closely monitored and controlled. The Legal Services Commission will be able to do so through individual case contracts with case-management teams working closely with defence teams to scrutinise and authorise items of expenditure. That will be of advantage to the defence team as they will have certainty and regularity of payment. For the public purse, it will ensure the best control over the most expensive cases.

It is the Government's intention to move, under the Criminal Defence Service, to the management of all very high-cost cases under individual contracts. We expect that all such cases arising after April 2002 will be handled under a contract. From April 2001, when the Criminal Defence Service is introduced, the commission will be given powers to insist that very high-cost cases are managed under contract. If a firm with such a high-cost case does not wish to enter into a contract, the commission may insist that the defendant chose another firm that is willing to work under a contract. However, neither the functions order nor any other piece of secondary legislation on this subject have an element of compulsion.

The Legal Services Commission needs to build up its expertise at managing very high-cost cases, and the intention is to do so with the willing co-operation of firms of solicitors that are expert in handling the largest cases. Until the Criminal Defence Service is introduced, no firm or barrister reporting a high-cost case will risk having the case removed from them. They will be free to chose whether to enter into a contract or to continue to do the work under existing legal aid regulations. The functions order will allow a purely voluntary arrangement for contracting to take effect and will give the commission valuable experience in designing such contracts, which will be carried forward as contracting is expanded.

Mr. John Burnett (Torridge and West Devon): Rather than detain the Committee later, will the Minister tell us now whether he envisages not only a crime franchise panel—with which we shall deal later—but a kind of super crime franchise panel to deal with the very high-cost cases?

Mr. Lock: Certainly there will be a sub-panel of solicitors holding a crime franchise who, in the opinion of the commission, have sufficient capacity and experience to take on very high-cost cases and run them cost effectively and efficiently, both in the interests of the defendant and in the wider interests of the commission in exercising appropriate cost control. That will ensure that the defendant gets the defence to which he is entitled, while the taxpayer gets the value for money that he is entitled to expect.

Mr. Burnett: Presumably, in order to get on to that panel, the firm will have had to have dealt with a crime that is beyond the remit of the crime franchise panel. Will it be open to all members of the crime franchise panel to apply to be on the super-panel?

Mr. Lock: Yes, it will certainly be open to any firm to apply. Admission to the panel will be based on a determination of whether the firm has the capacity and expertise to deliver services in respect of the small, but important, group of very high-cost cases, and it will be a matter for the commission alone. That is appropriate, given that the commission is the commissioner, or purchaser, of those services.

Mr. Burnett: I apologise for intervening again. I understand that the crime franchise panel will apply to solicitors. What criteria will apply to the Bar?

Mr. Lock: Naturally, part of the franchise requirements for solicitors will be that they must maintain, monitor and assess the quality of counsel who are, in effect, subcontracted by them to do part of the work that is undertaken in the global contract. It is anticipated that barristers will be parties to the agreements, and will be required to sign up to the case-management plan.

At present, my officials are working co-operatively with the Bar to develop quality standards for assessment and authorisation for barristers. It is clearly important to ensure that all legal services are provided by quality providers. In the long term, that will apply as much to barristers as to solicitors. Although so far the bulk of the work in driving up quality standards has been directed at the solicitors' end of the market, the barristers' end will receive considerable attention in future. It is not sufficient merely to be a qualified barrister for the commission to have confidence that one has the experience and ability to carry a significant piece of litigation through the courts. Additional hurdles, in the form of assessments, will have to be negotiated.

The other statutory instrument before us is the Legal Aid (Prescribed Panels) (Amendment) Regulations 2000. The regulations give effect to the long-announced requirement that, with effect from 2 October, only solicitors who are employed in offices that hold a crime franchise—or have passed a preliminary audit against the crime franchise standards, and are therefore progressing towards a crime franchise—will be able to undertake work that is funded by the Legal Services Commission.

The original intention was to commence the Criminal Defence Service elements of the Access to Justice Act 1999 on 2 October. However, the Lord Chancellor decided to postpone the introduction of the Criminal Defence Service to 2 April 2001 to allow extra time for preparation and co-operation with the professions on the introduction of contracts. That was in response to representations from the professions about the time scale within which it was reasonable to do the work and get it right. However, it was decided that the previously published date of 2 October for the possession of a crime franchise to undertake LSC-funded defence should remain unchanged. Franchises are granted to firms that have passed an LSC quality audit.

The LSC funds the majority of criminal defence work. All work in magistrates courts, all advice and assistance and all duty solicitor work is funded by the commission. Crown Court work is funded by the Court Service and, with a few very minor exceptions, is not covered by the regulations. The regulations take account of the fact that certain items of work, although defined in the regulations as criminal work, are often undertaken by other specialist solicitors. For example, individuals facing the prospect of imprisonment for non-payment of debt may be assisted by a solicitor who routinely deals with debt cases rather than one who routinely deals with criminal cases. Solicitors practising in those limited areas, with a contract for such work under the community legal service, will be able to continue to act on behalf of their clients.

The regulations will ensure that only quality suppliers are awarded public funds to assist individuals in the majority of cases. The commission will be provided with a known base of suppliers with which to contract on 2 April 2001. The order will allow the commission to gain experience of running high-cost case contracts and gradually build up skill and understanding in the most difficult cases. Together, the statutory instruments are important steps towards the introduction in April next year of the Criminal Defence Service. I commend the order and the regulations to the Committee.

4.41 pm

Mr. Nick Hawkins (Surrey Heath): I join the Minister's warm welcome to you, Mr. Cunningham, as Chairman of our proceedings. I agree that they will not take long, but they cover important matters and I want to raise two or three points with the Minister.

When I read the proceedings on these matters in another place, I noted what seems to be a departure—to me, a welcome one. We are discussing new procedures, new organisations and new arrangements coming into effect not on April fool's day, which has been the tradition of Governments of both parties, but on 2 April. That is a wise move. I have no idea whether my repeated reference to how unwise it is for the public perception of Parliament for so many matters to be introduced on April fool's day has played any part in the decision, but it is a welcome and sensible one.

Turning to a matter of slightly more substance, much of what we are discussing today has a read-across to a debate in Westminster Hall last Thursday on the community legal service as a whole. I do not want to go over again any of the ground that I covered in that debate, but I want to incorporate some of the criticisms that I made. There is increasing concern among solicitors throughout the country on how the provision is working at the sharp end. Since that debate, I have received letters from solicitors—including one that was referred to me by another hon. Member and to which I shall refer later—raising further concerns. The Minister may be unable to deal with all of them today, but I should be grateful if he would write to me and other members of the Committee with his response.

Before dealing with that matter, I want to raise another point about the community legal service. We are discussing access under the new community legal service and how the prescribed panels and publicly funded legal aid will work. The Minister has ensured that hon. Members—presumably all hon. Members, but certainly those with an interest in the matter—have received the directories covering their own areas. The two for the south-eastern region and southern region are in different, slightly bilious shades of green. My constituency lies wholly in Surrey. When I looked in those directories to see which firms and voluntary bodies had been included, did I see that all of Surrey was, as intended, in the south-eastern region? No, I did not; nor would my constituents.

There is an anomaly for which the Minister and his departmental officials are not entirely responsible but should have checked more carefully. I hope that the Minister will undertake to do so. The Post Office has incorrectly given part of my constituency a post town in another county. That causes immense angst. Indeed, a borough councillor, who is a former mayor of the borough of Guildford, has campaigned about the matter since the concept of post towns was introduced. We finally persuaded the Post Office to agree that those who live in Ash and Ash Vale, which are two of the largest wards, of about 25,000 electors, should be allowed to use Ash, Surrey and Ash Vale, Surrey as their postal address.

However, until that concession was made about a year ago, they were told that their postal address was Ash, Aldershot, Hampshire, and Ash Vale, Aldershot, Hampshire, even though they wanted to make it clear, to avoid confusion, that they lived in Surrey. Do we find the firm of solicitors which is on the community legal service panel and the citizens advice bureau in the Surrey directory for the south-east region? No, we find it in the directory for the southern region, in Hampshire. That will prove confusing for many people. Although that is partly the fault of the Post Office, Departments should check on such matters. If an address is in Surrey, it should be clearly recorded as such, so that people know in which directory to look.

I turn to correspondence that was referred to me by another hon. Member, because it relates directly to people who will participate on the panels. In commenting on a forwarded response from none other than the chief executive of the Court Service, which refers to people on the legal aid panel, the senior partner of a firm of Berkshire solicitors says:

    from discussion with Legal Aid Solicitors who are actually in practice locally,

his own opinion

    is nothing like as optimistic as Mr. Magee—

the chief executive—

    but then I doubt whether he is really that aware of what is happening ``at the sharp end''. I would certainly question

his assertion that

    ``remuneration has been set at a level to attract sufficient competent practitioners to do the work''... The number of solicitors in this area prepared to work for an hourly rate which yields little or no profit after over-heads are taken into account are decreasing daily...the huge amount of bureaucracy

means that

    Solicitors are...well able to look at their returns from any particular area of their practice and see whether it is actually paying its way. The majority of Legal Aid firms that I have spoken to locally who have franchises are contemplating giving up Legal Aid work, since it is not making enough money to justify the huge amount of input of time and effort into sustaining it, and frankly those who are competent and able to do so are taking the view that they would do better to turn their attention to other areas of privately funded work that does pay at a proper rate.

    The Lord Chancellor saw fit to make some comment last year about knowing that he was having the desired effect when he heard Legal Aid Solicitors squealing, well it will be interesting to see what he does when he doesn't just hear them squealing but sees them leaving the system in droves, so that his wonderful new Legal Services Commission is incapable of delivering qualified work.

Although, like Lord Kingsland, I shall not oppose the regulations, the Minister and his officials have a lot of thinking to do, and so, in particular, has the Lord Chancellor.


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