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Session 2000-01
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Delegated Legislation Committee Debates

Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001

First Standing Committee on

Delegated Legislation

Tuesday 8 May 2001

[Mr. Nicholas Winterton in the Chair]

Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001

4.30 pm

The Chairman: I welcome hon. Members to the Committee. If this is not the last Committee on delegated legislation to meet in this Parliament, it is one of the last. I hope that we all enjoy it and, to show total impartiality, that we are all returned once again to debate in this wonderful Parliament.

4.31 pm

Mr. Edward Garnier (Harborough): I beg to move,

    That the Committee has considered the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001 (S.I. 2000, No. 1077).

I begin by failing to echo your fond words, Mr. Winterton, except to say that I hope that the Chairman of the Committee is re-elected to his constituency with an even larger majority than that to which he is accustomed. Now to the fun.

Under the Access to Justice Act 1999, the Lord Chancellor has a duty to consider three statutory factors in setting rates of pay for publicly funded work: the need to secure the provision of services by a sufficient number of competent persons; the cost to public funds; and the need to secure value for money. The Lord Chancellor believes that there is no evidence to suggest that insufficient numbers of barristers are undertaking publicly funded work, and that, in fact, the numbers trying to enter the profession are increasing. It does not, of course, follow that new entrants to the profession will be willing under the new publicly funded rates to continue to work in this area. Yet again, we see the Lord Chancellor making an assertion that is wholly devoid of any basis.

I remember debating publicly funded legal services on the Floor of the House in November 1997 with the then Parliamentary Secretary, the right hon. Member for Ashfield (Mr. Hoon), who is now Secretary of State for Defence. He—no doubt having been well tutored by the Lord Chancellor—was in the habit of making assertions that appeared to be true, and often were true, but had little to do with the subject matter under discussion. I always treat with some suspicion a Lord Chancellor who makes an assertion and, by making that assertion, requires us to believe that the case is proved.

There are many aspects to family work, including financial ancillary relief applications consequent on divorce, private law proceedings relating to children and public law cases relating to children. It is important to note the comments of the Lord Chancellor's advisory board on family law about the levels of expertise that are required of, and the burdens that are placed upon, advocates in this area. In its 1999-2000 report, the board, quoting from its 1998-99 report, stated:

    ``Children Act proceedings are non-adversarial and require particular skills from lawyers both in and out of court. Lawyers who do not possess these skills can cause both delay in the resolution of the case and increased costs due to the unnecessary prolongation of court hearings.''

It cannot be overstressed that the proper and efficient administration of justice in family cases requires that the work be undertaken by practitioners of skill and experience. Moreover, cases are often highly complex.

All those aspects underline the need for experienced and skilled advocates to help litigants with sound and patient advice, guiding them through them through stressful proceedings. All litigation is emotionally charged and stressful, but little is more stressful than the conduct of court proceedings that concern the disposal of children—I mean that in the nicest possible way—and the break-up of a family.

The scheme contained in the statutory instrument is described as ``graduated'', but it is nothing of the sort. Again, new Labour is using language to suit its purpose, which has no relationship to what it is actually doing. It is, in fact, a fixed-price scheme, in which the same rate is to be paid, regardless of the seriousness of the case. In criminal work, more junior junior barristers do the less serious work. Senior counsel will be remunerated at a higher level when undertaking the more serious criminal cases within the scheme. In family work, senior juniors almost inevitably have a succession of substantial cases that require considerable preparation. Under this scheme, they will be paid at the same rate as the most junior junior barrister undertaking a straightforward case.

When the fee payable is translated into an hourly rate, it will be seen that if a senior junior is to do the work properly, he will be paid, in effect, on a reducing scale, if the hours spent in preparation and the true hourly rate are taken into account. The proposed uplifting features are not enough to compensate for that and will not apply in many serious cases because of their extremely restricted scope.

The Lord Chancellor's Department has contended that this is a question of swings and roundabouts: a junior barrister may lose out on a more serious case but gain if he or she undertakes a less serious or simpler one. However, that point ignores the reality of a senior junior barrister's practice. Such barristers do not receive the benefit of undertaking the simple, straightforward cases, but have a succession of substantial and difficult ones.

The Legal Aid Board report for 1999-2000 established that 16.4 per cent. of the total payment for family legal aid went to barristers and 83.6 per cent. to solicitors, whose fees had been increased by between 10 and 25 per cent., as announced by the Lord Chancellor's Department. The scheme is based on a model, which is based on data, but data collected before 1996 and apparently uplifted for inflation. That is not, if I may say so, a very sensible way to produce figures for such an exercise.

The Department's stated aim is a 5 per cent. reduction on payments currently made to barristers. Very junior barristers will suffer no reduction and might achieve an increase for their work in simple cases. Solicitors' rates will be increased. It is only too obvious that senior juniors will suffer a reduction of more than 5 per cent. of their income. Some senior juniors might suffer a reduction of between 25 per cent. and 40 per cent. in their gross income.

It is important for us—especially those who have not practised at the Bar—to bear in mind that barristers' fees are paid gross. Out of their fees, they have to pay income tax, rent, clerks' fees and pension contributions. They are self-employed and, unlike Ministers, do not get paid holidays. When discussing levels of fees, one is not talking about cash in hand, but gross payment to a self-employed practitioner.

The scheme in the order is there for all to see, so I will not take the Committee through it. No doubt the Minister will be keen to do that. It is interesting, however, to note that, whereas the scheme for counsel—that is, barristers—is set out in the statutory instrument, solicitors are to be paid in a completely different way for work that they undertake in family cases. They will be paid an hourly rate for the same work that barristers undertake. Frequently in family cases, senior juniors at the Bar will appear against solicitor advocates, especially in county courts where much family work is now undertaken. That is hardly an inducement to the solicitor advocate to settle the case. I suggest that there is an inherent unfairness about such an approach to remuneration.

The Department stated that the assessment of legal aid fees cannot be relied on to achieve the necessary savings that it seeks. The Lord Chancellor claims that the scheme is discredited and that there is a need to produce certainty. It is a remarkable feature of the Lord Chancellor's approach that he has left in place the system of assessment to deal with the payment of solicitors, which represents 83.6 per cent. of the total fund, but abolished it in relation to the payment of barristers, which accounts for 16.4 per cent. of the fund.

Of course, logic has never been at the forefront of that aspect of Government policy. On any number of occasions from May 1997, through the so-called Lord Chancellor's consultation period—an oxymoron, if I may say so—to the passing of the 1999 Act, we have had to deal with various contortions and illogical pronouncements. But there we are—that is the situation that we must deal with.

If it is right to pay solicitors the increased rates that the Lord Chancellor presumably considers reasonable, why is it fair to pay barristers such inadequate—in some cases, derisory—rates? Why should senior juniors at the Bar, who are individuals with the usual personal and family commitments, be obliged to work long hours at uneconomic rates? Although evidence to date is only anecdotal, several senior practitioners have expressed an intention to give up publicly funded work, and they do so with great regret.

I always have to be careful when making remarks that seem to be on behalf of the Bar. I am here on behalf not of the Bar but of the official Opposition, to resist what we believe is an unjust incursion into the way in which counsel in family cases are paid their fees by the taxpayer.

The Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy): Is the hon. and learned Gentleman opposed in principle to the introduction of a graduated fee scheme for family counsel, or does he object to the level at which the fees have been set?

Mr. Garnier: The official Opposition are not opposed in principle to graduated fee schemes—indeed, we introduced them for the criminal practitioner. What we object to is the level of fees and the scheme's impact on the provision of publicly funded counsel for family cases.

I mentioned the anecdotal evidence of those leaving this aspect of publicly funded work. Assuming best motives on the part of the Government, it does their case no good if those who are expert in this field of law decide that it is no longer economic for them to practise it. It will not do for complicated family cases to be dealt with in law centres by untrained practitioners, or by those who work in paralegal organisations. What the public and public policy require is that those who are experienced in, good at and understand this aspect of the practise of law should be encouraged to continue.

I do not blame the Minister personally. To use the current mantra, this Minister, as I understand it, is not to blame for anything. In saying so, I am simply echoing the words of my hon. Friend the Member for Mid-Sussex (Mr. Soames), who never misses an opportunity to praise her. Nor, for that matter, do you, Mr. Winterton, and why should you? However, the problem is that even if the Minister is not actually holding the wheel, she is certainly up on the bridge, and this particular legal ship is casting aside any number of altruistic practitioners in its wake. As a result, her constituents, who are probably less prosperous than mine, will be unlawyered.

In this Parliament of lawyer bashers, it probably does not cut much ice, or whatever one cuts in Parliament, to say that lawyers are being put out of work. However, the lawyers in question perform a public function and, compared with many other practitioners, they are already underpaid. It is wholly stupid to introduce a scheme that will encourage lawyers who work in this aspect of law not to do so. I say that not because I am particularly fond of such lawyers, but because I am concerned about the public, who will be denied access to justice.

The more that I talk about the matter, the less, I fear, I am listened to by the Government. None the less, it is true that lawyers are leaving publicly funded work as a direct consequence of the Government's policy. That can only be to the detriment of the people whose sole contact with the administration of justice is in connection with family work. They need barristers of skill and experience to protect and guide them through a most stressful period of their lives. The policy undermines, rather than bolsters, the efficient administration of justice.

The Government introduced the Human Rights Act 1998 with great trumpeting. Perhaps the Committee should consider whether the policy will undermine the right to family life that is enshrined under article 8 of the European convention. If litigants are deprived of barristers of sufficient skill and experience to advise them and present their cases, surely that will not be to the advantage of such individuals and may undermine the maintenance of that right to family life.

In the other place, Lord Bach attempted to explain the Government's case. Until he was called to higher places, he was a district councillor in my part of Leicestershire. We regret his departure from Harborough district council to the House of Lords, and regret even more that he has been behind the driving through of this secondary legislation in the other place. It is matter of deep double regret that it is the Minister, whom you, Mr. Winterton, admire so much, who has the responsibility for dealing with the matter in this House.

I look forward to hearing what the Minister says. I hope that she will be able to rise above the level of argument of her noble Friend, who trotted out a number of figures, some in the thousands, and said, ``Well, these family barristers are being paid far too much and they have got what was coming to them. The gravy train must be brought to an end. If they squeal, the louder the better.'' The noble Lord took a regrettable attitude. I have paraphrased what he said, but I think that I have done so faithfully. I trust that once the Committee has heard the Minister—she having heard my comments—it will consider not allowing the order to continue its passage.


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