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

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Mr. Garnier: On the matter of predicting future certainty, how many family law barristers does the Minister think will be available to do the work? Does not she accept my point that publicly funded lawyers are leaving the publicly funded Bar in droves?

Jane Kennedy: I do not accept the hon. and learned Gentleman's point. I shall come to that in a moment.

Barristers will receive payments more quickly under the scheme, because their bills will be assessed and paid by the Legal Services Commission at various fixed points during the case, usually within three or four weeks of submitting their claim. They will no longer have to wait until the end of the case, which will mean that they will benefit from better cash flow. At present, they can wait months, or even years, to receive payment. The graduated fee scheme fulfils the Government's need to control and predict how much of the taxpayer's money is spent and at the same time introduces a prompt and fair system of payment to barristers for work done. I do not think that enough credit is given for that.

The scheme that we have introduced has been continually developed and revised since discussions with the professions commenced in 1997. There was an extensive period of consultation with the Bar, the Law Society, members of the judiciary and other interested parties. The main consultation period took place between 4 July and 12 October 2000. It was extended by a number of weeks at the Bar's request. Consultation has continued through numerous meetings with the professional bodies, at both ministerial and official level.

The scheme has been revised significantly to reflect concerns, especially those expressed by the Bar. For example, a number of changes have been made to reward senior junior counsel, who, as I mentioned earlier, are likely to take on the more complex cases. The changes include uplifting fees by one third for cases taking place in the High Court, as I have already mentioned. New payments will also be introduced to reflect the size of the court bundle, and additional payments introduced in ancillary relief cases, reflecting new procedures introduced last year. The rates payable within the scheme were the subject of detailed consultation.

The scheme is based on the information collected in a survey carried out by Ernst and Young in 1996 combined with information collected by the Bar Council in 1999-2000. The fees have been uprated to 1999-2000 prices and the assumptions made within the model have been agreed between the Department's analyst and the Bar Council's analyst.

The Lord Chancellor initially proposed rates that would have resulted in an estimated reduction of between 10 and 20 per cent. in the amounts paid to the Bar for family work. Following consultation, the rates have been increased by about 15 per cent. The additional funds that have been placed within the scheme reflect the Government's recognition of the importance of family work and have been used to fund a number of changes, in response to the Bar's representations. The aim of those changes is to reduce the flatness of the scheme and to reward complexity.

We would be concerned if any new fees scheme reduced the number of high-quality barristers undertaking family work. We would not have introduced any scheme that we believed would have that effect. In proposing the rates, the Lord Chancellor fully considered the responses to the consultation process and the factors set out in section 25 of the Access to Justice Act, to which the hon. and learned Member for Harborough referred.

I will touch on the supply of competent legal practitioners, to which the hon. and learned Member for Harborough and the hon. Member for Torridge and West Devon referred. The Bar Council's own research suggests that the number of barristers is increasing every year and that there is intense competition to enter the profession. Also, the number of publicly funded family cases has continually decreased as a result of wider changes in society.

Mr. Garnier: I had hoped that the Minister would not take up that line of argument because it was comprehensively dealt with when the order was debated in the other place. It is true that more people want to go to the Bar but it is also true that fewer of them are going into the publicly funded part of it. There are fewer and fewer publicly funded cases, but that is because the Government have completely ripped up legal aid. The 1999 Act removed huge tranches of legal aid work. Labour Members ought to be ashamed of that, but they repeat it as if it were something of which to be proud.

Jane Kennedy: I flatly disagree with the hon. and learned Gentleman on that point. I do not share his view. It is important that the case be made and the position explained. It is also important to realise that between 70 and 80 per cent. of advocacy work in family cases is undertaken by solicitors. The number of cases using counsel is already very small. The number of publicly funded family cases is decreasing. That decrease has nothing to do with legal aid, but is the result of wider changes in society. Taking all those factors into account, we have no reason to believe that there will not be sufficient competent legal practitioners available for publicly funded family work.

Mr. Garnier: What are the changes in society that are causing the effect that the Minister has announced?

Jane Kennedy: Fewer cases require barristers, particularly in the High Court. However, the cost of those cases has been escalating, with the result that fewer people can be helped because more of the money has been going to fewer lawyers. That is the situation that we inherited. A graduated fee scheme already existed in draft form under the previous Government.

Mr. Garnier: That may be true, but it has nothing to do with my question. What are the changes in society that have led to the consequences of which the Minister spoke? Presumably, she must know because she mentioned them.

Jane Kennedy: We all know what changes have taken place in society. Fewer cases are contested in the High Court as a result of wider changes taking place in society, such as the way in which people make relationships with each other, and the sorts of marriages and legal relationships that are entered into. Fewer people are eligible for the kind of publicly funded help that is available under the scheme because people must qualify in the same way in which they previously qualified for legal aid. That is the result of the considerable success in the general management of the economy achieved by the Chancellor and the Government. People are better off, so fewer people qualify for such aid.

I should also like to mention the cost to public funds. In 1999-2000, £62 million was paid to barristers for family work. The average payment made to barristers has continued to rise—a 12 per cent. rise in the last three years. The Government have also become increasingly concerned about the high payments made to barristers in some family cases. In the context of a controlled budget for the Community Legal Service, the rising payments to the Bar mean that fewer people can potentially be helped.

Finally, I come to value for money. Much of what I have said about the cost to

public funds also applies here. The hon. and learned Gentleman said that barristers in this area were underpaid in comparison with others in the profession. That may be so when compared with barristers in the commercial field, but the fees that barristers will be paid for undertaking this work are still significant in comparison with the rates paid to many other professionals, such as teachers, hospital doctors, lecturers, professors and judges. We estimate that a barrister will still be paid more than £2,000 for a public law children case involving three days in court. Even when allowing for professional expenses of, say, 25 per cent., that is a generous remuneration.

Mr. Burnett: The Minister referred to cash flow matters and said that some of the graduated fees would be paid in tranches to assist cash flow. I hope that she will refer to that again before she concludes.

Jane Kennedy: It is in the nature of a graduated fee scheme that, instead of having to wait until the conclusion a court case and the decision over the level of fees to be paid, the fees are paid as the case proceeds. Payments will be made to counsel as the case proceeds through its stages. I will obviously not convince the hon. and learned Member for Harborough, but I hope that I have reassured other hon. Members that the scheme presents no danger to the good conduct of family work in the courts, or to the Bar as a profession. Having said that, we listened carefully to representations that were made, and in introducing the scheme we have changed it to reflect those representations.

We undertake to conduct a careful review of the way in which the scheme works, and we will try to ensure that none of the dire predictions of Opposition Members comes true. We will monitor the scheme closely to ensure that it is adjusted to reflect any such developments, even though we are confident that they will not occur. We feel sure that the scheme is robust and will achieve the Government's objectives. I commend it to the Committee.

5.15 pm

Mr. Garnier: I am grateful for these few moments to reflect on what the Minister has said. I am particularly grateful to the hon. Member for Torridge and West Devon and his noble Friends for their support for our stance on this prayer.

I regret to say that the Minister's remarks, which were made with angelic charm, had little to do with the issues with which we had to grapple. I fear that the arguments of Government and Opposition Members passed like two ships in the night, without even so much as the doffing of a cap. That is a pity, because the issues are serious and a matter of public concern. They have not achieved a great deal of publicity, but that is often the way with this aspect of public policy.

The Minister said, no doubt correctly, that she knows very little about this subject, which is not one with which she has had to come to terms until quite recently. Being in government is a tough job, and I can assure her that being in opposition is an even tougher one. Let us hope that our positions will not always be as they presently are.

The public, particularly those who are interested in this aspect of Government policy, will be able to read and consider what has been said today. The Minister wondered whether she had convinced Opposition Members of her argument, and I can tell her that she has not. She also hoped that she had persuaded Government Members of it, but if she has not I am sure that the hon. Member for Stirling (Mrs. McGuire) will. On this occasion, Mr. Winterton, I can do the arithmetic as easily as you can, so I shall not advise my hon. Friends to press the matter to a Division. However, that is not to say that we approve of or applaud the way in which the Government have approached the issue, or congratulate them on it.

Question put and negatived.

        Committee rose at eighteen minutes past Five o'clock.

The following Members attended the Committee:
Winterton, Mr. Nicholas (Chairman)
Berry, Mr.
Burnett, Mr.
Clark, Mr. Paul
Cryer, Mrs. Ann
Etherington, Mr. Bill
Garnier, Mr.
Griffiths, Mr. Nigel
Kennedy, Jane
Khabra, Mr.
McGuire, Mrs.
McIntosh, Miss
Paterson, Mr.
Robertson, Mr. Laurence

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