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

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Several hon. Members rose—

The Chairman: Order. Before I call the next speaker, I remind the Committee that our deliberations must be concluded after one and a half hours. Should there be a Division in the House, and we are pushed for time, the discretion of the Chair allows me to provide extra time to take that into account.

4.48 pm

Mr. John Burnett (Torridge and West Devon): I have had the privilege of serving under your chairmanship many times, Mr. Winterton, and, as I have said in the past, you always lend a great deal of tone to what would otherwise be a pedestrian affair.

First, I declare an interest: I am a solicitor, but I do not practise. Given that the debate is about counsel's fees, I can, with some justification, say that I am reasonably detached from the matter. I have always been a strong supporter of the independent Bar. It serves well clients of the high street and the rural solicitor, and those of virtually every solicitor, except perhaps those of the huge international firms in the City of London. We are not talking about special privileges for lawyers or for the Bar. An independent Bar gives the opportunity for every client, however humble, to engage and brief, through their solicitor, an individual of significant expertise. That is one reason why I strongly support an independent Bar, which I have found during my experience of more than 20 years as a solicitor.

Family matters, especially proceedings under the Children Act 1989, are complex and require skilled and specialist individuals as advocates. Once more, I have a cri de cur for the Minister. We have explanatory notes, but they are inadequate. All Departments, not just the Minister's, produce a couple of paragraphs at the end of a statutory instrument, which are not entirely adequate. I look forward to hearing whether the Minister honestly believes that, given the fee scales envisaged in the statutory instrument, there will still be a sufficient number of individuals, of sufficient expertise and skill, available at the Bar to be briefed in such crucial matters.

There is a list of some factors to be taken into account over fees: the nature of the proceedings and whether additional fees should be payable if there has been an exceptional amount of preparation. I do not see other factors, such as complexity, included. Is the Minister saying that the graduated fees will be interpreted on the basis of those notes so that there will be reasonable remuneration to reflect the expertise, knowledge and experience of members of the Bar? If not, many of our clients—as I have already stressed, I am speaking about them today—including children and divorced spouses, will not have adequate representation and there will be miscarriages of justice.

It is simply not on to have amateurs dealing with such matters, especially the incredibly tortuous, complex matters concerning children. I hope that the Minister will address my points. I re-emphasise that it is vital to us all that there should be individuals of sufficiently high calibre, expertise and experience to do such work.

4.52 pm

The Parliamentary Secretary, Lord Chancellor's Department (Jane Kennedy): Thank you, Mr. Winterton, for your kind words at the outset. I take the remarks of the hon. and learned Member for Harborough (Mr. Garnier) on the chin. The order and the debate fall entirely within my area of responsibility in the Department, so I am responsible for the policies that lie behind them and I do not recoil from that.

I must say to the hon. Member for Torridge and West Devon (Mr. Burnett) that, although the explanatory notes at the end are brief, as a non-lawyer, I find the statutory instrument relatively easy to read. Its intricate details are technical in nature but fairly well laid out and, for a laywoman like me, relatively easy to understand.

Mr. Burnett: I do not want to appear trivial, but it would be interesting to have a history included in the notes, to see where we are now in the matter of payment to barristers. Many things could be mentioned in the notes that are not there.

Jane Kennedy: I intend to fill in details, such as those for which the hon. Gentleman asks, and which further scrutiny of the statutory instrument might have shown to members of the Committee. I shall take a few moments of the Committee's time to explain matters to those who do not have a detailed knowledge of the Bar, unlike the hon. and learned Member for Harborough and the hon. Member for Torridge and West Devon, who are both barristers and well schooled in such work, and who both spoke in favour of the prayer, and to clarify aspects of this very important issue that have not always been made clear in media reports and the surrounding debate.

As the hon. and learned Member for Harborough said, this is a new scheme. It will pay barristers for their work on publicly funded family law cases, which were previously referred to as legally-aided cases. It provides for set fees to be paid for different types of family case, and breaks down family work into four types: public law children cases; private law children cases, perhaps including those brought to the county court as a result of divorce proceedings; family injunctions, which commonly involve domestic violence; and ancillary relief and other types of family case.

The fees vary between the four categories of case, and different tasks will be taken into account in calculating the fee. Although the hon. and learned Gentleman disputed the fact, the fees are graduated to reward counsel according to the complexity of the case. As my noble Friend Lord Bach said in the other place, the more complex the case, the higher the fee. Each case is then broken down into defined pieces of work.

Five functions, which reflect different aspects of the case, are detailed in the statutory instrument, and it might prove helpful if I draw those aspects to the Committee's attention. They include advice, conferences, payment for two types of interim hearing, and payment for the main hearing. Additional payments that are linked to the function fees can then be claimed to reflect special payments for the various issues and complexities that might occur in given cases, which might include those in which one party is not represented, where more than one expert is involved, where there are allegations of child abuse, or where foreign financial issues arise. Such factors might render a case more time-consuming or difficult.

In addition, separate payments will be made for incidental factors such as viewing evidence tapes and incurring travel and hotel expenses. A court bundle payment will also be made that reflects the size of the court bundle. That provision was introduced to allow for additional preparation, and to comply with the president of the family division's practice direction of 10 March last year, concerning the preparation of documents.

The more skilled and experienced practitioners, who generally undertake the more complex cases, will be further rewarded by an uplift of one third in respect of fees paid for cases held in the High Court.

Mr. Garnier: One third of not very much is not very much, as I am sure the Minister will appreciate. However, I wonder whether she can help in respect of what are called function 1 costs. As I understand it, the order will permit payment for only one conference involving the lay client, the solicitor and counsel, in which advice is given by counsel. However, courts will have to deal with cases involving hugely difficult and emotionally charged issues, for which a single conference will not suffice. Given that several conferences might therefore prove necessary, does the Minister think it fair and sensible that counsel should be paid for only one? Does she also think it fair that only one payment for pre-advocacy should be allowed in cases where, for example, more than one barrister needs to get involved?

The Chairman: That was a long intervention.

Jane Kennedy: I am grateful for the length of the intervention, because it allowed me to obtain some guidance. Not having worked in this area before, I approach the detail relating to it with great care in an effort not to get it wrong, and I undertake to correct any mistakes that I might make due to my lack of detailed knowledge. There is an element of remuneration in the hearing unit fee, which is not the function fee to which he was referring, that provides for all preparation, including conferences. In addition, during the consultation on the scheme, agreement was reached with the Bar Council by which a specific and separate payment is paid in respect of the conference, including a telephone or video conference. It is generally accepted that that will be adequate in cases in which the main issues are addressed at one conference. I am not sure whether that entirely answers the hon. and learned Gentleman's question.

Mr. Garnier indicated dissent.

Jane Kennedy: Obviously not.

The real dispute between the two sides of the Committee is not the principle of graduated fees, but the level at which those fees have been set, on which we have had to make a judgment. I hope to explain how we arrived at that judgment and to answer the genuine and serious questions that have been asked about whether the level at which the fees have been set will properly remunerate members of the independent Bar—which is the fear that lies at the basis of the dispute.

I hope that hon. Members will appreciate, even from my brief description, that, in making final decisions on the structure of the scheme, the Lord Chancellor has had regard to the fees that are paid to barristers at all levels, including new barristers entering the profession. The scheme recognises that different cases will require different types of work from barristers and rewards them for that.

It is worth pointing out that discussions on the family graduated fee scheme started in 1996 under the previous Government. By that stage, negotiations on the criminal graduated fee scheme were near completion. The scheme for criminal work has been in operation since 1997 and has been a great success. It is intended that later this year it will be extended to cover a wider range of criminal cases. The Government have decided to continue work on the graduated fee scheme for family work, and the scheme has been developed in close consultation with the Bar Council—despite the hon. and learned Gentleman's disparaging comments about the nature of that consultation. We were naturally encouraged by the success of the criminal graduated fee scheme and by the fact that it demonstrated that such a scheme works for remunerating counsel. It was also clear that the existing payment scheme for the family Bar was in desperate need of reform.

Under the previous fees system, fixed rates with standard and maximum payments were paid to junior counsel. The rates covered only briefs covering one-hour, half-day and full-day hearings, and included payment for preparation. For hearings lasting more than a full day, the rate was fixed on assessment by the court. As members of the Committee will recognise, that meant that the Government had no means accurately to forecast expenditure of public funds on family cases or to control the amount of taxpayers' money that is paid to barristers. Under a graduated fee scheme, barristers—in common with almost all other professionals—will know in advance of a case how much they are likely to be paid. They may not like the amount, but at least they will have some certainty about it.

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