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Delegated Legislation Committee Debates

Draft Legal Aid (Prescribed Panels) (Amendment) Regulations 1999

Fourth Standing Committee on Delegated Legislation

Wednesday 8 December 1999

[Mrs. Ray Michie in the Chair]

Draft Legal Aid (Prescribed Panels) (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 Aid (Prescribed Panels) (Amendment) Regulations 1999.

I welcome you to the Chair, Mrs. Michie.

These regulations 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 awarded around 5,000 general civil contracts to solicitors' firms and more than 330 contracts to not-for-profit agencies. In future, these will be the exclusive method of delivering legal aid for the categories of work that 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 has to have passed the Legal Aid Board's quality franchise audit on a full or provisional basis. Provisional franchisees have to meet the full standard within one year.

Each solicitor's contract specifies the number of new advice and assistance cases that the provider is authorised to start next year. This 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 could be reduced if a provider's average case costs unjustifiably increase, thereby ensuring that the total cost of the contract remains within budget.

These regulations amend the Legal Aid (Prescribed Panels) Regulations 1999. The existing regulations provide that legally-aided clinical negligence cases may be carried out only by legal service providers who are members of a prescribed panel consisting of firms holding a franchise from the board for that type of work. The regulations before us today amend the existing regulations to create a similar requirement for family cases and immigration cases. It is already clear that this has led to better results for the clients, and less public money being wasted investigating hopeless cases.

The effect of the Legal Aid (Prescribed Panels) (Amendment) Regulations 1999 is to establish a family franchise panel and an immigration franchise panel, as prescribed panels under section 32(7) of the Legal Aid Act 1988. It may assist the Committee if I explain the background to that Act. Section 32(1) creates a general right for a person receiving advice, or assistance or representation, to select any legal representative willing to advise, assist or act for him or her. That right may be qualified by regulations made under section 32(7), so that the person receiving assistance may select only from legal representatives who are for the time being members of a prescribed panel.

Regulation 5 establishes the family franchise panel and regulation 6(5) sets out that only those litigators who are for the time being members of the family franchise panel may carry out legally-aided family work. All solicitors' firms holding a contract with the Legal Aid Board authorising them to undertake family work will be members of the panel.

Regulation 6 defines the meaning of family proceedings as

    ``proceedings which arise out of family relationships, including proceedings in which the welfare of children is determined.''

This regulation also specifies the Acts and jurisdictions under which all proceedings are deemed to be family proceedings for this purpose. Proceedings under other Acts may be family proceedings, depending on the circumstances. For example, proceedings under the Trusts of Land and Appointment of Trustees Act 1996 could be treated as family proceedings if they arise out of family relationships. The regulation specifically excludes proceedings for judicial review from the definition of family proceedings. That will ensure that administrative law practitioners, who do not have a family law contract, will none the less be able to take those cases.

In the same way, regulation 7 establishes an immigration franchise panel; and regulation 8 defines the meaning of immigration proceedings as

    ``proceedings relating to immigration, nationality or asylum''

before specified courts. The main types of proceedings covered by that definition are judicial review, habeas corpus and appeals from the immigration appeals tribunal to the Court of Appeal or the House of Lords. From I January 2000, representation before immigration adjudicators and the immigration appeal tribunal will be available under the Legal Aid Board's general civil contracts, and will be governed by part II of the 1988 Act. Section 32(1) does not apply to part II, so those tribunals do not need to be mentioned in the regulations.

The effect of the regulations will be that representation in immigration proceedings before the courts will continue to be dealt with under legal aid certificates under part IV of the 1988 Act, but they will be restricted to firms with an immigration franchise and contract. Regulation 8(3) provides that only those litigators who are, for the time being, members of the immigration franchise panel may carry out publicly funded immigration work.

The number of people seeking asylum in this country has grown over the past few years, and the indications are that the number will continue to rise in the immediate future. The Legal Aid Board awarded contracts to meet that increasing demand, and it has retained a significant reserve to allow it to expand contracts as the patterns of genuine need become clearer. In particular, the board will be able to react to changes in the geographical distribution of demand following the dispersal of asylum seekers around the country.

Under the general civil contract, legal aid will, for the first time, cover representation before the immigration appellate authorities. That will reduce duplication and help make the system more effective.

The creation of a quality assured immigration franchise panel also deals with the problem of unscrupulous advisers who have, until now, been able to take advantage of asylum seekers. The franchise process has excluded a substantial number of unscrupulous and incompetent firms from the scheme.

Contracting will provide a guarantee of quality of service; monitoring will check that those standards are maintained. Quality is essential, because we plan to spend £202 million on advice and assistance next year, compared with about £180 million this year. I trust that all members of the Committee will agree that it is important that that money is spent wisely.

These reforms will be good for the client, good for the profession and good for the taxpayer. I commend the regulations to the Committee.

4.39 pm

Mr. Peter Atkinson (Hexham): I welcome you to the Chair, Mrs. Michie. My appearance before you today is somewhat unexpected.

I am grateful to the Minister for his explanation. Had I been a lawyer, I would probably have understood rather more of what he said. I had hoped that he would give us some idea of how the scheme is working. I believe that the first franchise panels started work earlier this year, and it is important that he should tell the Committee about some of the problems that seem to have arisen.

I have several concerns about the bureaucratic nature of getting registered on the panel. I understand that it may even lead to a legal challenge being made by a rather well-known firm in Southwark in south London, which feels that it is being deprived of a place on the panel despite the fact that one of the firm's partners is the greatest expert on the subject for which the firm is applying.

People in rural areas are worried that advice is becoming harder to obtain. Traditional country solicitors are not often to be found on prescribed panels. People are therefore having to travel considerable distances to obtain advice. In rural Northumberland, the area that I represent, there are few immigrants—almost none—but it is possible for an immigration case to arise in the area. Will the Minister guarantee that there will be a prescribed panel for immigration, even in rural areas?

Finally, in relation to areas where there is only one prescribed panel for a particular discipline, what happens if both parties require legal aid? That is quite possible in family proceedings. Will both parties be represented by the same firm of solicitors?

4.41 pm

Mr. John Burnett (Torridge and West Devon): I join hon. Members in welcoming you to the Chair, Mrs. Michie. We have not had the honour of having you chair a legal affairs Committee before, and I assure you that we try to conduct our proceedings in a reasonably civilised manner.

The regulations effectively provide for legal aid funding to be channelled through providers of legal services who have demonstrated a high degree of administrative skill and specialist knowledge. The regulations relate especially to specialisation in family and immigration matters. A similar measure on clinical negligence was debated in Committee on 27 January this year. I reiterate what I said in that debate: Liberal Democrat Members support specialisation and value for money.

It is important that the public have the assurance of higher standards and expertise in specialist areas of family law and immigration law. It is in the taxpayer's and the public's interest that lawyers should have the expertise to deal with the cases on which they are instructed. In short, specialisation should be encouraged. As the Minister said, the proposals will help to cut out fraud relating to the legal aid fund, especially fraud perpetrated on unsuspecting immigrants.

I wish to raise several matters, and look forward to the Minister's response. First, I am anxious to know exactly what is entailed in a lawyer being admitted to the family franchise panel and the immigration panel. What written examinations—if any—have to be passed? Who supervises them? How much experience is required to be admitted to such a panel?

Will the Minister and his Department have an on-„going role monitoring the qualifications and standards of practitioners in those fields? For example, will grandfathering or grandmothering proposals be involved in such qualifications? Such proposals would relate to people who have practised for some years and feel that they automatically receive qualifications for one of the panels through long experience. Will such individuals—if there are any—be exempt from taking any written examinations?

I reiterate the point made by the hon. Member for Hexham (Mr. Peter Atkinson). Many of us from rural constituencies are worried that people in remote areas will not be able to find lawyers who have qualified on one of the panels. Will the Minister provide assurances on that?

Does the Bar Council intend to introduce specialist panels within the Bar? Has the Minister received proposals from the council to that effect? Would the Lord Chancellor's office welcome such proposals?

Although I support the regulations, as I said earlier, I wish to put on record one or two words of warning. Qualifications for admission to a panel should be open to all who satisfy the criteria and not limited artificially to a finite group of individuals.

The advantages of specialisation will be denied if the individual whom the client has chosen to act on his or her behalf is not the person who actually conducts the matter. Panel members should not simply be the net to catch the legal aid work. Cases must be handled by the panel member rather than by an inexperienced and insufficiently qualified subordinate. I hope that the Government will monitor adequately the specialist panels to ensure that the abuse to which I have alluded will be avoided.

4.45 pm


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Prepared 8 December 1999