Motion made, and Question proposed, That the sitting be now adjourned.[Jim Fitzpatrick.]
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton) : It is a pleasure to see you in the Chair, Mr. Benton, especially as you are a justice of the peace. I am sure that this will be relevant to your interest. This afternoon is obviously a good opportunity to debate an important issuethe role that the provision of legal and advice services can play in tackling social exclusion. I am sure that, like me, hon. Members who are present are acutely aware that, if our constituents do not know where to turn for advice, for example, on housing, debt, welfare or community care problems, they face enormous difficulties and those problems increase their hardship. One unresolved problem can lead to many others.
The downward spiral of the accumulation of interrelated problems leads to social marginalisation and exclusion has a huge financial and social cost both for individuals and society as a whole. The Lord Chancellor's Department has recognised for some time the link between social exclusion and poor provision of good quality legal advice and guidance. That is a reason why we worked with the Law Centres Federation to produce this document, "Legal and Advice Servicesa Pathway out of Social Exclusion". I recommend it highly and I believe that if hon. Members looked at the arguments in the paper, they would join me in praising the Law Centres Federation for the excellent work that has been done, not only in putting this document together, but in its general work.
In addition, the link between social exclusion and the poor provision of legal and advice services has been highlighted by the first national periodic survey of legal need, which was recently completed by the Legal Services Commission. That is the first comprehensive national picture of unmet legal need in respect of social welfare and family problems. It produces hard evidence of the link between deprivation and a person's inability to resolve their problems in the areas that I have set outhousing, debt, welfare benefits, employment, immigration and community care. The survey demonstrates that people facing social exclusion face also a host of interrelated problems that all require independent expert advice.
Shockingly, the survey shows that many people take no action to resolve their problems. Either they do not realise that they need to take advice or they have nothing but fear about what to do, because they simply do not know where to go. I am sure that, because of the experience that many of us have in our constituency surgeries, hon. Members will recognise that the survey
That is why, in 1997, Labour's manifesto pledged to set up a community legal service to plan legal and advice services at local, regional and national level, very much according to the needs and priorities of individual areas. That pledge became a reality in April 2000 when, through the Legal Services Commission, the Government established the Community Legal Service. The aim of the CLS is to ensure that people, especially the socially excluded, get as early as possible the best and most appropriate help for whatever problems that they have.
The building blocks of the Community Legal Service are the CLS partnerships, which now cover 99 per cent. of the population of England and Wales. Altogether, there are 213 partnerships. Typically, they will consist of the local authority, local solicitors, local citizens advice bureaux, voluntary organisation, law centres and those providing advice in the community, such as local disabled groups and local housing associations. Help is given by the staff of the Legal Services Commission, and often by the local authority, in setting up the CLS partnerships. The CLSPs are very much about getting local people together to look at what provision there is for advice locally, to identify what gaps there are and to work out how to fill those gaps.
Ms Julia Drown (South Swindon): I am grateful to my hon. Friend for giving way. Everything that she has said I can understand and follow as a logical way for improving legal services for those who are socially excluded. However, could she look at the situation in Swindon, where it is now 18 months since any lawyers have provided housing legal aid, apart from in our law centre, which cannot cope with the demand? That is one of four areas where we do not have access to appropriate legal skills, and the CLSP needs extra help. Could she take a look at Swindon to see how we could help provision, especially for the socially excluded?
Ms Winterton : Yes, I will certainly undertake to do that. As I understood it, in the Swindon area, Shelter has been assisting with providing advice on the housing front, and I was going to mention that later. I shall look at that because I know that in both the Bath and Swindon areas, advice about housing has been identified as a difficulty.
Many local authorities have recognised how important it is to involve local people when CLS partnerships are set up. Certainly, in Brent, when a CLSP was set up, there were elections at a local advice centre, and three representatives from tenants groups now sit on the CLSP steering group, as well as representatives from the local authority, the Legal Services Commission and the private sector. That shows not only how important it is to have local people involved in the partnership, but also that, as my hon. Friend the Member for South Swindon (Ms Drown), has identified, there is often a great interest from people in the housing sector. This is where the gaps may have been identified in Swindon because, once partnerships are established, a strategic plan is drawn up, which sets out what advice services are available locally, what the gaps are, and what needs to be done to fill them, with the
I know that, for example, CLSPs across Kent identified a lack of advice about debt and access to responsible financial services, as being a particular difficulty for local people. As a result, Gravesham borough council has developed the "Really Useful" saving scheme with the Kent Reliance building society. That not only brought in debt advisors to work with vulnerable people, but provided assistance in addressing financial exclusion by offering people a means of saving small amounts of money and of borrowing at low interest rates, thereby preventing resort to the all-too-familiar loan sharks about which we all know. I know from discussions that we had with the Medway council, organised by my hon. Friend the Member for Gillingham (Paul Clark) that it is looking at establishing a similar scheme in that area.
I understand that in Bath and Swindon, where housing advice has been identified as an area of difficulty, an outreach service was developed through Shelter, to ensure that some of those problems were addressed. However, I take on board what my hon. Friend the Member for South Swindon has said, because I know that the Legal Services Commission worked with ShelterI am sure that we should all like to pay tribute to that organisation, which is the largest provider of independent housing advice
Ms Drown : The Minister is generous in giving way. The experience locally is that far fewer people are able to bring forward their housing problems, so even if Shelter is helping, we are still not getting enough help. Local lawyers tell me that, until improved payment rates for legal aid are introduced, we shall not be able to get more solicitors on board and, therefore, more help. Are the Government looking at that problem?
Ms Winterton : We are certainly aware of the points that solicitors make about remuneration rates for legal aid work. It is something that we monitor constantly. I would be more than happy to look into the points that my hon. Friend says that solicitors are making in Swindon on that subject.
Mr. William Cash (Stone): Will the Minister accept that I shall certainly be dealing with the question of the role of the Law Society in this context? Naturally, I declare an interest as a solicitor, but not one who has been dealing or is likely to deal with legal aid. Does she agree that one cannot expect people to give advice on extremely complicated legal issues simply on the basis that it comes free? One cannot require people to give advice when this Government, like previous Governments, stand accused of having generated so much complexity in legislation that there is a resulting problem of social exclusion. People simply cannot understand the law.
Ms Winterton : I am not sure which piece of legislation the hon. Gentleman is talking about.
Ms Winterton : I understand that the hon. Gentleman disapproves of what I would call protection for
Mr. John Burnett (Torridge and West Devon): Before the hon. Lady leaves the extremely important not-for-profit sector, may I say that the compelling point made by the hon. Member for South Swindon (Ms Drown) is mirrored throughout the country? This morning I received a letter from the admirable Law Centres Federation, which is deeply concerned that the funding for law centres continues to be insecure. It tells me that, in the past two weeks alone, funding cuts by the Association of London Government have threatened the future of the central London and Paddington law centres. Those are areas of severe deprivation. The various points that the Minister has made are stark. Will she say something later in her speech about funding for the not-for-profit sector?
Ms Winterton : I am certainly very aware of the points that the Law Centres Federation has made. As I said, I believe that the work that it does is extremely good and well researched, and I pay credit to it. However, some of the problems that arose recently were, I think, due to the fact that the Association of London Government was looking at the overall funding of law centres. I believe that at a meeting last week, it agreed to put on hold some of the proposals that it had come up with, and was looking at a review of that whole area.
Later in my speech I shall make some particular points about how, through CLS partnerships, there can be access to other funds that are meant to tackle social exclusion. First, however, I should like to make two points. On the Legal Service Commission contract funding of law centres, the value of contracts has risen from £4,034,000 in 200001 to nearly £6.5 million in 200203, and the number of law centres supported by contracts has grown from 36 to 43.
There will always be an issue about grant funding versus contract funding, and the Law Centres Federation would likeI hope that I am correct in saying that this is still its positionto see a ring-fencing of local authority money for legal service provision. While I understand that argument, central Government do not want to dictate to local authorities how they should spend money in that area. We have moved away from trying to say exactly which services local authorities should provide. The whole idea of CLS partnerships is to enable people to identify what services are available and where there are gaps. I shall explain later how it then enables them to identify how funding can be accessed.
The funding that has been made available for citizens advice bureaux has increased recently. The hon. Gentleman will have seen the briefing from the citizens
I hope that the way in which we have organised the CLS shows that we want to support the not-for-profit and voluntary sector. It is not only in the area of funding, however, that we are trying to improve matters; it is also in the quality of advice that is offered. We feel strongly that people must feel confident that the help that they receive is reliable and trustworthy, so we have also introduced a quality mark, which is the standard that underpins all the work undertaken by member organisations of the CLS.
Through the partnerships that have been developed, a whole host of new ways of working and new initiatives have developed. In addition to the basic partnerships and the money that has been accessed there, we have also set up the partnership initiative budget, and 76 projects across England and Wales have now been funded by that scheme. They look at new ways of working at a local level, both to increase awareness and to fight social exclusion by providing good advice to local people. For example, the partnership initiative budget awarded funding of nearly £130,000 to Redcar and Cleveland Women's Aid, which, in partnership with the Tees District benefits agency, has established an "advice circle" for women affected by domestic violence. The advice circle is supported by more than 50 member organisations from the local domestic violence forum and provides a "one-stop" holistic service through outreach working in the local community. My hon. and learned Friend the Member for Redcar (Vera Baird) has been extremely supportive of that project and, I think, helped to launch it.
In Brighton and Hove, the Brighton Housing Aid and Legal Centre is working with MIND and the local citizens advice bureau to improve access to advice for mental health service users. That need was identified in its strategic plan; it then put in a bid for it, and it is now providing an extremely useful service through advice sessions in GP surgeries, local hospitals and community health centres.
In Dorset, the local citizens advice bureaux have joined with the county council's social services directorate to raise awareness about welfare benefits, particularly among the elderly and people with disabilities. They set up a home visiting service, which has been up and running for about 10 months, and a further £500,000 has already been claimed by elderly and disabled clients.
As we all know, social exclusion can be tackled only by Government Departments working together. To that end, the CLS has been working closely with the social exclusion unit and the neighbourhood renewal unit, Jobcentre Plus, the Department of Health and the Connexions service. The Under-Secretary of State for Education and Skills, my hon. Friend the Member for Bury, South (Mr. Lewis), who is responsible for the Connexions service, and I met recently to look at how we could improve joint working between local CLS partnerships and local Connexions services. We are looking at how we can issue further joint guidance to ensure that cross-referrals are made, so that young people know exactly what is available in their local area and local CLSPs are made aware of what is available
In other areas, toothis goes back to points that hon. Members made earlier in the debatelocal partnerships can assist in accessing the funds that are more widely available. I am thinking particularly of how CLSPs can link in with the Government's neighbourhood renewal strategy. As hon. Members will know, in England the NRS is delivered principally through local strategic partnerships. CLSP representatives are taking an increasingly active role with the local strategic partnerships and arguing the case that I have been making today: that the provision of legal and advice services has an important part to play in tackling social exclusion. Thus the CLSPs can achieve access to funds such as the neighbourhood renewal fund where it is identified locally that poor provision is contributing to social exclusion.
Mr. Cash : Does the Minister have figures to hand, or could she supply me with them, on the extent of the relationship between the problems that she has identified and the increased costs that, one must assume, follow from the increased numbers of asylum seekers entering the country? Are such figures available and, if so, may I have them in due course?
Ms Winterton : Some figures are available, although they may get mixed up with the figures on immigration advice. Where gaps have been identified and grants made to fill those gaps, the figures would apply not just to asylum services but to immigration issues. Obviously, there is an overall figure for legal aid and asylum seekers, but I shall see what figures are available.
The example that I was about to mention was that of Tower Hamlets, where the local CLSP has worked with the local strategic partnership and successfully put in a bid for funding from the neighbourhood renewal fund to support an income maximisation project. It targets low-income households in Tower Hamlets and provides special help to those who need assistance in claiming benefits and tax credit entitlements. By March 2004, the project will have delivered some £1 million in increased income in Tower Hamlets.
In Leicestershire, the local CLSP has worked with Leicester city council to secure funding from the health action zone, as well as £250,000 from the neighbourhood renewal fund, in order to run a welfare benefits advice service from local GP surgeries.
Thus the community legal service aims not only at tackling social exclusion through the partnerships, but at working alongside the neighbourhood renewal strategy. There are many other areas of the Government's social policy agenda on which it impinges. For example, long-term jobseekers can face any number of social problems that impede their ability to search for work or, once they have found a position, to retain it. They may face debt, housing or other domestic problems that make keeping a job difficult. The more that we can help unemployed people, for example, to address such problems, the fewer social problems there will be. If 1 per cent. of those on jobseeker's allowance returned to work just one week earlier than they would otherwise have done so, there would be considerable savings to the public purse.
Legal and advice services can also play a part in tackling the causes of ill health. Patients may be admitted to hospital with respiratory problems that may stem from poor accommodation or stress caused by debt. Health care professionals can tackle the initial problems, but it would be useful if we could signpost people to places where they can get other advice. That is why hospitals and GP surgeries have a central role in our plans for the development of the CLS.
I firmly believe that, over time, the benefits that the CLS can deliver will become increasingly evident. I hope that my remarks will convince hon. Members of the valuable role that legal and advice services can play, particularly in tackling social exclusion.
I know from my constituency experience that our communities recognise the problem. My constituency has a new deal for communities project. One of the first projects that local people decided to pursue was joining the college of law in York to set up "Streetlaw", a scheme through which trainee lawyers provided advice. People in a very deprived area of my constituency felt that that was top of the agenda in tackling social exclusion. By ensuring that the CLSPs remain firmly focused on local people's needs, we can not only make a real difference to people's daily lives but contribute to the Government's strategy of combating social exclusion and sustaining local communities.
Mr. William Cash (Stone): I am glad to take part in this debate. Westminster Hall debates often touch on matters of great importance. Only 10 days ago, we had one on voter apathy that was chiefly distinguished by the apathy of hon. Members, who refused to turn up, with a few exceptions. None the less, these debates are important, and this is an important subject.
I referred in an intervention to the problems that are parallel to social exclusion. I do not much like that expression because people have been poor for a long time. Such fancy, politically correct expressions are a modern invention. The real question is whether people need help or not. Some people cannot help the fact that they get themselves into difficulties, but some could help themselves an awful lot more in getting out of them. Having said that, part of the problem relates to legal advice.
I can say in all seriousness, having practised as a solicitor since 1967, that there is far too much law around, and it is immensely complicated. I do not criticise the Minister's point about wanting to protect people, but we could much better protect them by using our parliamentary capacity to produce fewer laws. That would be one of the most useful protections against exclusion of all kinds, and I regard it as a primary objective.
Mr. David Drew (Stroud): The hon. Gentleman may be surprised to learn that I agree with him; it would help if we got what we did right. Does he agree that there is a problem in all manner of disputes in that when one side gets legal advice, the other is uniquely disadvantaged?
Mr. Cash : I certainly agree. I know the hon. Gentleman's constituency well, and his predecessor even better, and can only add that beautiful, rural areas with great landscape value such as his and mine also have many amenity problems. I am not trying to formulate party policy on the point, but I can say in my present capacity and from my experience, that I have been troubled by something in my relations with the community groups for whom I have acted or against whom I have engaged in legal battles over the past 30 years. There is a great disparity between the vast public resources available to county councils, Government agencies and authorities or water or electricity bodies when they advance plans that have a massive impact on local communities, and those available to the poor people on the ground, who must try to defend their amenities without recourse to legal aid.
I shall come to legal aid shortly, but it is in the public interest that legal aid be available to amenity bodies where, for example, a properly qualified inspector issues a certificate of public interest. We would not want a group of people to set themselves up as representing the concerns of an area's residents or an amenity group, engage Queen's counsel and drive a project into the ground through having access to unlimited funds. A certificate of public interest would help resolve such problems. Speaking in my personal capacity as shadow Attorney-General, I can say that that proposal should be considered seriously in the public interest.
The National Association of Citizens Advice Bureaux has helpfully supplied a paper. I have long had the greatest admiration for that organisation and have campaigned to raise money for the one in my constituency. There are others who play a critical part in the citizens advice networkpeople called Members of Parliament. We all have streams of people coming to our surgeries and I like to believe that, in our own way, by giving practicalnot necessarily legaladvice and by using the machinery of government, we can perform as useful a service as anyone else in helping to resolve problems on behalf of our constituents. That is true irrespective of party political interest and of the party political allegiances of those who walk through our doors. One of the great strengths of the British political system is that that service is available at no cost, and so it should remain.
As the 1998 CLS White Paper, "Modernising Justice", states:
I am sure that that is true, so strongly favour the principle of supporting the CLS. However, it is necessary to point out some of the problems that have arisen.
First, there are doubts about the impact that the CLS is having on access to legal advice. For the reasons that I have already given, I can hardly blame people for being daunted at the scale of the problem, because almost everything that moves these days has some legal implication. It is daunting for people to seek advice
On the "Today" programme this morning, we heard the Information Commissioner, Mr. Thomas, counter a proposal for identity cards. The fact is that there are severe worries in the minds of the public and I hope that the Minister is aware of people's inhibitions about seeking advice when they fear that, by making such a visit, they will expose themselves to further difficulties. Many people who have got into difficulty arrived there partly as a result of their own mistakes. The issue of confidentiality needs further consideration.
The objective of the CLS is to
particularly in the context of social welfare law. Although I am a lawyerI think that, among those hon. Members present, only the hon. Member for Stroud (Mr. Drew) is not, and he is an expert none the lessthe fact remains that social welfare law is a nightmare of complexity. A number of key issues are emerging. Although many advice agencies are contracting with the Legal Services Commission to provide specialist advice for people eligible for legal help, there are problems with the funding of advice services for the majority who are not eligible for help from the CLS. In a moment, I shall come on to the role of solicitors, which is presenting a particularly acute problem on which I have received advice from the Law Society.
Advice for people who are not eligible for help still relies on local authority funding which, in many cases, as we know, has been cut as it is a soft target for authorities trying to curb prospective increases in council tax. Given the current problems in the provision of public expenditure, there is evidence that local authority funding for legal advice is often cut or frozen. I founded an enterprise agency in Stafford and raised £40,000 from local businesses and other sources. It is still providing efficient and practical advice, some of it legal, for small businesses. I am about to set up another in Cheadle in my constituencyit is not just social welfare that people need but advice on enterprise and legal problems, the variety of which is about as wide as the statute book itself.
We must also consider the extent to which CLS partnerships have properly assessed the need for advice services in their areas. Whatever the analysis of the problem, the reliability of such assessments and the extent to which communities are involved in them is very variable indeed. More consistency in the assessments by CLS partnerships would be helpful. Inappropriate decisions on funding and the kind of advice services needed are common, and that needs to be addressed. Even when a need for particular advice services is identified, unfortunately funding does not follow.
Another problem is the provision of legal aid and the concerns about solicitors identified by the Law Society. We have recently heard serious criticism, some of which are justified, of those who are involved in a racket in respect of asylum seekers. On the one hand, unscrupulous lawyers will encourage people to come and see them on the ambulance-chasing principle,
We must consider the question of advice for asylum seekers and the unfortunate contrast that I have discussed repeatedly in the newspapers between people who, by any reasonable standard, should not be entitled to legal aid and people with middle-ranking incomes who are excluded from legal aid. I cannot accept that people with access to public funds who are subsequently discovered to be terrorists could not have been weeded out earlier. It is wrong that people can have legal bills that run up to millions of pounds on appeal even though, by any reasonable standard, they should have been deported. They should be excluded, not just socially but excluded altogether. However, we cannot prove that that is the case until we reach the end of the legal process. We should try to get the ducks in a row, and not give into political correctness when dealing with such people. They may be a minority, but the problem is serious none the less.
The Law Society says that access to legal advice and representation for everyone who needs it is a hallmark of a free and democratic society. We agree that legal services are a critical public service that ranks alongside health and education. If legal rights are not enforced, taking into account my point about reducing the complexity of the law, people are denied justice. The current system of publicly funded legal services is simply not good enough, and the Government have made the prospects for access to justice very bleak indeed. When I took up my present post on the Front Bench, one of the first things I was asked was, "What is the biggest problem facing the legal profession?" I said that it was the problem of legal aid, and that we needed a radical review.
The Law Society believes that the time has come to open a debate on the future of legal aid, with which the profession as a whole has become disillusioned. As I have said, solicitors are mostly in private practice. Short of nationalising the legal profession, which would be nonsense, we cannot oblige people to provide advice. However good CABs and Community Legal Service advice centres, most advice comes from solicitors. Anyone who believes that solicitors can be dispensed with is a fool. People become solicitors and remain in the profession because they have the expertise to deal with such problems. The legal aid system is central to the question of whether people can get access to the professional advice available from solicitors. Records for the past 10 years show that the cost of running a solicitor's practice has risen by 67.52 per cent. On the other hand, legal aid rates have risen by only 26.35 per cent. The very best interpretation would be that legal aid is only marginally profitable.
Every year, the Law Society puts a cogent case to the Lord Chancellor's Department for an increase in legal aid rates. The Law Society is clear about the necessity of delivering a high quality service to the most
Despite the necessity to pay lawyers a reasonable rate, and the efforts of the Law Society,
I believe strongly in putting forward the case fairly, and not just in scoring party political points
The Law Society and the Legal Services Commission have looked into this, and their statistics demonstrate that solicitors are turning their back on legal aid,
although the problem has to be resolved
The Law Society will continue to make the case for a reduction in bureaucracy and for economies within the existing scheme. In particular, the fact that 1 per cent. of Crown court cases account for 49 per cent. of Crown court expenditure seems wholly disproportionate, and we may have to deal with that when the Courts Bill comes before the House shortly. That is tied up with the question how the reallocation of the functions of courts impinges on the delivery of justice at local level.
The Law Society believes that the apparent use of the legal aid fund to support the QC system is a matter of concern to all legal aid solicitors. One need only speak to a barrister these days to discover that they, too, complain vigorously about the fact that they are not paid on time. The whole problem of the slowness of legal aid payments is a contributory factor in this.
Mr. Andrew Dismore (Hendon): I was interested to hear what the hon. Gentleman said about the QC system. Will he sign up to my campaign to abolish it?
Mr. Cash : Most emphatically not. I say that not wearing any political hat, but having spent a large part of my life practising law before I came into this place, I must say that the quality of advice that the QC system offers is infinitely greater than anything one could get from the average, or even the finest, solicitor. I conducted my practice at an extremely high level. Some QCs work in areas of the law that are not particularly complex, but the idea of not needing a QC in areas such as tax law, given the absurd complexity of that law at present, or administrative or constitutional lawin which I used to practiseis a joke. I cannot believe that the average solicitor would be able to deal with that sort of problem in the same way as a QC can.
Mr. Dismore : I am not advocating the abolition of the Bar, but of the QC system. Perhaps the hon. Gentleman is getting a little confused. If the system were abolished, lawyers would be as qualified and able to give the same advice without the letters after their name, and probably with a much smaller bill.
Mr. Cash : I hear what the hon. Gentleman says, but one could apply that analogy to almost any business. There is always a pecking order, and those who are further up the tree get there only because they are better than others. It is a mark of distinction. That, and the pay that goes with it, is not as great as some people think. I know quite a few QCs who have been earning less money since they became QCs than they did when they were senior juniors. But that is getting away from the subject.
In the absence of a new and radical Government policyfor example, the introduction of compulsory legal expenses insurance, which I hope the Minister has taken on boardthe choice for those in private practice is stark. Practitioners can either attempt to carry on as now, accepting continuing reductions in real hourly rates, or they may reconcile themselves to accept a significantly reduced role with only the most complex of cases being referred to private practitioners on the basis of more realistic hourly rates.
I see the difficulties in a compulsory legal expenses insurance scheme, but if it were possible to come up with a policy around that principle it would be a sensible way forward. Have the Government done any thinking along those lines at all? The alternative is to increase the legal aid rates in line with the arguments that I have been making.
The problem is not unique to England and Wales. Even allowing for the fact that an adversarial system requires substantially greater legal representation than an inquisitorial one, our current legal budget is significantly larger than that of our continental neighbours. We can compare the way in which the law functions in this country as compared with others. For example, when countries such as Sweden and Holland dramatically reduce their legal aid budgets, it is perhaps time to re-examine the means by which legal services are delivered to the most disadvantaged members of our society.
The paper and the arguments that I am presenting must be addressed. It is important to ask this question: within the context of a cash-limited legal aid budget, which scheme will deliver legal services most effectively
I have dealt with most of the issues that I wanted to raise this afternoon. I end by making a plea to the Government. We must have a system that provides proper, reasonable legal advice to those who cannot afford it and particularly to those who most need and deserve it. It involves moral judgments, but they have to be practical, too. The system as it functions at present prevents people from getting the sort of advice that they should be allowed to get at a reasonable rateprovided from public funds if necessaryin a manner that guarantees proper access to justice and the opportunity for people to be properly legally defended and to have their case properly examined. I trust that the Government will take on board some of my arguments, because there are serious problems. This is about access to justice, and about enabling people to be properly protected.
Mr. John Burnett (Torridge and West Devon): I welcome you to the Chair, Mr Benton, and I declare at the outset that I am a lawyer, although I do not practise as one. I put on record my gratitude to Richard Miller of the Legal Aid Practitioners Group, the Law Society, NACAB and the Law Centres Federation for the material that they have given me.
I shall not dwell on the niceties, as there are quite a lot of compelling points to make about the legal aid system. I welcome the opportunity to debate legal and advice services for tackling social exclusion. The debate has come at an opportune time.
In common with the Minister, my case work is not unusual. All Members will be aware from their correspondence and their advice surgeries, week in and week out, of the inadequacies of the system and the inability of individuals to access legal advice and assistance. Access to justice is meaningless without the assistance of a lawyer. Individuals are bereft if they cannot access justice in the courts. Either their complaints and representations will never be heard and redress never given, or, if they seek to act for themselves, they are at a considerable disadvantage and major miscarriages of justice will ensue. On that matter, the hon. Member for Stroud (Mr. Drew) made a compelling point when he said that if one side gets legal advice and the other does not, that other party is uniquely disadvantaged. The hon. Gentleman is right. That has happened to a number of my constituents, to their grave disadvantage and, in two recent cases, has resulted in bankruptcy.
In cases where there is a litigant in person, the chances of miscarriages of justice are greater. The courts complain bitterly that litigants in person cause delays and frustration to the system.
Mr. Drew : The hon. Gentleman quoted me correctly. The one thing worse than an individual trying to take the law forward in his own right is if he has advising him someone who is not a lawyer but who professes to have legal knowledge. I am sure that, like me, the hon. Gentleman has heard of cases of barrack-room lawyers
Mr. Burnett : The hon. Gentleman makes a good point. It will add to the cogency of my case.
I will make a critique of the current legal aid system. Before I am accused of speaking with hindsight, I remind the House that these were matters to which I and others adverted not only during the progress of the Access to Justice Act 1999, but in different debates on the justice system both in the House and in Westminster Hall.With the changes introduced by that Act, we have under the Legal Services Commission a financially demand-led criminal defence service and a civil legal aid system that is also under the aegis of the Community Legal Service. I said on more than one occasion that that arrangement would wither on the vine, and it is now doing so.
I want first to address the difficulties faced by firms that are dropping out of the system and are not prepared to do public work. The facts show that there is a substantial exodus of firms, which are not prepared to do civil legal aid work. I have the advantage of having in front of me the Law Society's Gazette of 23 January 2003. The headline on the front page is:
and the first paragraph of the article that follows states:
About 270 law firms were surveyed.
Lest anyone think that I am praying in aid only a self-interested organisation, I shall also refer to the Legal Services Commission's annual report for 200102, paragraph 2.7 of which states:
In the same paragraph, the commission makes it clear that it was receiving intelligence through its regional offices showing that
The vast bulk of legal aid work is done by private practitioners.
The Minister must agree that, unless there is access to legal services, there can be no access to justice. She must ask herself why firms and individuals are ceasing in droves to do publicly funded work. I put it to her that the major reason is the appalling level of funding. I refer her to the November 2002 National Audit Office report on the community legal aid service, and to paragraph 3.10 in particular. The NAO also emphasises the reduction in the number of firms and individuals who are prepared to do publicly funded work. The stark reality is that it is financially almost impossible to do that work. I am aware that remunerations were increased by 10 per cent. for licensed work and 5 per cent. for controlled work in April 2001, but as the hon. Member for Stone (Mr. Cash) stated, and as the NAO reports, the rates
Effectively, if my mathematics are correct, when the April 2001 increases are backdated for six years, they can be calculated at less than 1.5 per cent. a year for licensed work and less than 0.75 per cent. a year for controlled work.
I must emphasise that the freeze for the six years prior to 2001 was exactly thata freeze. No allowance was made in those years for inflation, and one does not have to be the Lucasian professor of mathematics at Cambridge university to calculate that the April 2001 increase did not even cover inflation.
Mr. Cash : Will the hon. Gentleman give way?
Mr. Burnett : If the intervention is about the Lucasian professor of mathematics, I shall not give way, but otherwise I shall do so.
Mr. Cash : My intervention is actually about the Lord High Chancellor. It would be remarkable if we did not at least allude in this debate to the extraordinary circumstances last week of the pay increase awarded to the unelected Lord High Chancellor.
Mr. Burnett : I am grateful to the hon. Gentleman for making that point. It had occurred to me to ask whether the increase that the Lord High Chancellor has forsaken will also be reflected in the pension that he has forsaken
Mr. Joe Benton (in the Chair): Order. I do not think that that is relevant to the debate. I ask the hon. Gentleman to revert to the subject under discussion.
Mr. Burnett : I am grateful to you, Mr. Benton, as always, for bringing the hon. Member for Stone and me back to order.
As I said, one does not have to be an eminent mathematician to realise that the increases made in April 2001 do not even cover inflation. The point that the Minister must understand is that no one can do publicly funded work in those circumstances. During debates on the Access to Justice Act 1999 and on other occasions, I said that civil legal aid would wither on the vine. That process has not only started; it is accelerating.
I also wish to raise with the Minister the current difficulties that practitioners are having in relation to something that is referred to as "matter starts". As the House will know, a firm with a contract can take on a specified amount of cases during any financial year. During the first two years of contracting, the Legal Services Commission increased the contract numbers when firms requested it. Last November, firms were told that they could not take on extra cases because the budget had run out. There is often only one contracting firm in large rural areas, which can mean that the victim of domestic violence or someone with benefit, welfare or housing problems has nowhere to go for advice. It can mean that a vulnerable child will not have representation. That is not good enough and the Minister's Department must urgently introduce a more flexible system of coping with "matter starts".
We should not forget in this debate the plight of the vast bulk of middle Englandpeople who do not qualify for legal aid. Unless somebody is on income support, it is likely that they will have to make a contribution towards any civil legal aid that they receive. The House will be aware of my grave reservations about conditional fee agreements. Of course, at the core of such agreements is a conflict of interest. There can be such a conflict between the solicitor and the client, the client and the barrister or the client and the insurance company, and between any other combination of those parties. Can the Minister tell us about take-up by the Bar of conditional fee agreements? For example, are most barristers prepared to enter into such agreements?
The Minister will knowI have mentioned this issue beforethat an excellent report on such agreements was conducted under the aegis of Richard Southwell QC. It was entitled "The ethics of conditional fee agreements". I do not know whether her Department is making a study of effectiveness or whether many hon. Members have seen the agreements, which are extremely lengthy. Does the Minister believe that a client who is presented with such an agreement should go to a separate firm of lawyers for advice before entering into it? A spate of litigation occurred and some have suggested that conditional fee agreements were one of the reasons for the dramatic increase in insurance premiums. The lawyer, who now gets a cut, will pitch the damages to tempt the insurer into settling so as to save legal costs. The fact that the lawyer has a financial interest in the outcome of the case will influence some lawyers in their conduct of the case. Some will bend the rules or evidence, especially if their finances are tight.
Mr. Dismore : I am grateful to the hon. Gentleman for giving way. I should also like to say something about CFAs if I catch your eye, Mr. Benton. Is not the hon. Gentleman confusing contingency fees with CFAs? That seems to be the thrust of his argument.
Mr. Burnett : I shall allude to contingency agreements shortly. The fact is that for the first time, under conditional fee agreements, the lawyer will get an upliftbut if he does not win, he will get nothing. The point is that he will have a financial interest in the outcome of a case.
As I have said, some lawyers will compromise their clients by accepting too low a sum of damages in order to get their cash and, as the hon. Member for Hendon (Mr. Dismore) pointed out, the bonus as soon as possible. What work has the Department conducted on the effectiveness of conditional fee agreements? It is clear that litigants can often secure conditional fee agreements if the facts are simple and the likelihood of success is more than 90 per cent. certain. That will apply to many personal-injury cases, for instance, but what about other cases?
Is the Minister satisfied that no cartel is working in respect of "after event" insurance for defendants' costs? Is she satisfied that there is open competition in this market? What is her Department's policy on moving to a contingency fee system? As the hon. Member for Hendon will know, I have always believed that conditional fees will be the precursor of contingency fees. While I do not approve of contingency fees, I
The Minister is right: there is a link, which I consider to be compelling and dramatic, between social exclusion and deprivation and unpaid legal need. Far from finding a solution to the problem, if anything, the Government have aggravated it.
Mr. Andrew Dismore (Hendon): I should first declare an interest as a solicitor and a partner in a law firm, although I am not taking any cases at the moment. I think that it is impossible to work effectively as a lawyer while also representing one's constituents.
My firm specialises in trade union work, primarily personal injury work, about which I shall say more shortly. I want to concentrate on trade union schemes, which have not featured largely in the debate so far but which I think important when we are considering the question of social exclusion and access to justice. We have heard today about people with immigration and asylum problems, housing problems and consumer problems, but one of the biggest legal issues that can face a person is the loss of a jobor serious injury, which can itself result in the loss of a job.
Trade union schemes support their members' employment rights and personal injury claimsnowadays not just as a result of accidents in the workplace, but as a result of accidents on the roads and in wider contexts. They also provide cover for the families of trade union members, and support former trade union members who, 10, 20 or 30 years later, may suffer from serious diseases resulting from their jobs. Trade unions also operate many advice schemes. They still represent tens of thousands of people every year; they recover millions of pounds in compensation, and provide an extremely valuable part of our legal aid and assistance network.
Before going into the details, I want to respond to some points made by Opposition Front Benchers. The hon. Member for Stone (Mr. Cash) spoke of a compulsory legal expenses insurance scheme. That is one of the daftest ideas I have ever heard. Who will pay the premium?
Several years ago, as part of a case with which I was dealing, I tried to assess the equivalent purchase cost of a trade union legal aid scheme. This was in 1994 or 1995. In those prices, it cost about £120 a year just to provide the legal expenses insurance that trade unions already provide. As I have said, I am concerned about who pays. We are talking about people who are on welfare benefits, who cannot afford to provide insurance for their carsif they have themfor the contents of their homes, or even for the homes themselves. If the choice were between insuring a television and insuring legal expenses, I think I know which people would choose; but in fact they cannot afford either.
There are Human Rights Act implications here. What happens if someone does not buy one of the hon. Gentleman's compulsory legal expenses insurance
Mr. Cash : If the hon. Gentleman had heard me correctly, he would know that I said that the Law Society had presented a proposal that included the possibility of a compulsory insurance scheme. I did not say that I endorsed it. I did say that certain matters were affected by the present crisis, which must be addressed somehow. The real crisis results from the Government's failure to provide the money that is necessary to allow access to justice for those whom the hon. Gentleman is obviously keen to protect.
Mr. Dismore : I thank the hon. Gentleman for clarifying his position, but it does not defeat my basic point: I think that it is a rather daft idea. There are a number of ways of providing legal assistance, one or two of which I shall mention shortly.
As for the tirade on conditional fee agreements delivered by the hon. Member for Torridge and West Devon (Mr. Burnett), he is thinking of the old-style CFAs. Under that system, the uplift for success was taken out of the client's damages at the end of the case. Since the Access to Justice Act 1999, it has been recovered as part of the costs from the insurance company. There is therefore no loss to the clientwhereas, under a conditional fee arrangement, there would be a loss, American-style, of a third or more of the damages.
Contrary to what the newspapers would have us believe, damages in this country are exceptionally low. Contingency fees have been debated for many years, and have always been dismissed for the same reason: the level of damages simply would not sustain any sensible conditional fee arrangement. If a contingency fee were proposed I would oppose it, because it would give rise to conflicts of interest that do not arise under a CFA scheme.
Mr. Burnett : If, as is the case under a conditional fee agreement, the arrangement is "no win, no fee", is not a conflict of interests inherent in such a system?
Mr. Dismore : I do not think that there will be a serious problem if the agreement is drawn up properly. As I said earlier, I practised as a trade union lawyer for 20 years or more. Trade union schemes are not dissimilar, in that they create theoretical but not really practical conflicts of interest. Trade unions will never be a bottomless pit of money. If a client's case were patently useless, the trade union would ultimately decide not to fund it. In such circumstances, the lawyer is pig in the middle, but in practice such problems can always be overcome sensibly. The hon. Gentleman is making a mountain out of a molehill.
As I have said, trade unions provide a general, comprehensive and cheap form of legal insurance, and should be encouraged rather than discouraged. They can now operate schemes such as the new collective CFAor CCFA. They can either self-insure or
However, a number of practical problems have arisen with CCFA schemes. Trade unionsthis is, in fact, a general problem with CFAscannot say to a client, "No win, no fee. You need not worry about it; the union will pick up the bill." Now, in theory, lawyers must under CFA arrangements give an enormous screed of information about their cost liabilities. In practice, those will never arise, because the trade unions indemnify the trade union member. The exercise is pointless, but it makes the trade union member question whether he is being supported by his union. He wonders why he is being given all the information, which merely confuses him. I do not see why we have to ask trade unions and their lawyers to go through such a complicated system. Trade unions should be able to tell their members that they are supported by the scheme and that there is nothing more for them to worry about.
I have a sample letter from one of the law firms that practises in trade union work similar to mine. It runs to two pages of closely typed legal advice. As the hon. Member for Torridge and West Devon said, one might need a lawyer to help interpret it. It makes people unnecessarily suspicious. The problem is compounded by one of the many cases that have come out of the satellite litigation around CFAs: the Sarwar case, which requires a trawl of a client's "before the event" insurance policies to see whether there is anything else that should take precedence over the trade union scheme. That is extremely bureaucratic and time-consuming, and undermines the credibility of the trade union scheme because the member thinks that the union is trying to wriggle out of its obligations under the union rule book to provide the scheme.
Union firms have so far not found any "before the event" insurance policies that are better than the trade union scheme, yet having signed up the trade union client, they nevertheless run the risk, when the case is over, of the insurance company challenging the agreement and arguing that there was a "before the event" insurance policy which should have been adopted, rather than the trade union scheme. The union firm is risking a challenge if it turns out that the "before the event" insurance policy was suitable.
If there were such a suitable policy, the trade union firm would have to hand over the case to the "before the event" insurers. That is usually referred to a firm that is not so specialised in personal injury, the aspect that we are discussing, or in the particular industry or trade. When I practised, I specialised in particular industries, as many firms do. One gains a great deal of specialist knowledge that is not generally available to lawyers. The lawyers who work on "before the event" insurance policies are often less aggressive in their assessment and will turn down what are otherwise good cases.
The question of independence of advice arises. That is illustrated by a letter sent to one of the trade union firms from Industrial Claims Assessors, which seems to be a composite of a claims assessor, a legal services broker and an insurer. Under the heading "Funding CFAs", the letter states:
You see, we share a common interest in only selecting good cases, as you naturally want a high success rate. We want to limit our exposure by paying on the insurance policy, if a claim should fail.
Our marketing name is under ICA, leads are obtained through a mixture of TV, Advertising, direct mail, canvassing and internet activities all potential clients are interviewed in their homes with every detail being scrutinised and confirmed.
Only those that show good potential are passed to you for initial assessment."
That is what goes on between claims assessors. The trend is worrying, not just because of the claims assessors' practices in sifting out and cherry-picking cases, but in their general approach to CFA work and insurance policies. I question whether that is the right way to go, compared with the trade union scheme, under which quality control is exercised and disbursements are properly fundedunlike the claims assessors' arrangementsand the unions are prepared to take on difficult cases and expect their lawyers to run test cases, which would never see the light of day under the other arrangements.
Mr. Cash : As I have a number of constituents who have been affected by emphysema and who have been involved in a class action that has reached vastly complex dimensions, I should be interested to know whether the trade unions have been fully engaged in that, and whether the difficulties facing my constituents are a result of the case not being handled properly in the first place.
Mr. Dismore : I am not sure which case the hon. Gentleman is referring to. If he is referring to some of the miners' compensation cases, I can tell him that a scheme has been devised to handle the vast number of those as effectively as possible. My understanding is that the biggest single problem is producing the medical evidence needed to support the claims, because there are insufficient doctors who specialise in such work. It must be borne in mind that the number of doctors who are prepared to do medico-legal work is relatively limited, and those doctors have to find the time to conduct their normal medical practice and produce the medical force. I know of the frustration experienced by many of those undertaking such claims. It involves not only those involved in emphysema claimsI saw it in the huge scheme involving industrial deafness claims. It is
Ms Winterton : Perhaps I could be of assistance, as I have some knowledge of the matter from my constituency. Another problem is getting proof of employment history, particularly for older workers.
Mr. Dismore : My hon. Friend is correct. The additional problem in some of the asbestos caseswhich I think she may have in mind, rather than the miners' cases, but perhaps she was referring to bothis that the client may have had a dozen different employers. Employment history is often extremely difficult to track down.
We need a legislative solution to the practical problems surrounding collective conditional fee agreements. People are being worried unnecessarily, they are being required to do work unnecessarily, and they are being required to produce documents unnecessarily, when all the trade union wants is to be able to say to its member, "We are supporting you. It will not cost you anything." I do not see why we need a great screed of paperwork, which confuses people so much.
There is an additional problem in relation to CCFAs, which I think arises from a drafting error in section 30 of the Access to Justice Act 1999 relating to self-insurance. That is one way in which the CCFAs operate. The self-insurance premium, which is recoverable from the defendant, can be recovered only as far as it covers the cost of insuring against lost legal costs and lawyers costs, not as far as it covers lost disbursements. That is an anomaly compared with ordinary CFAs and militates against CCFAs and self-insurance. In the long run, self-insurance will clearly be cheaper because it does not entail the same pressures as commercial policies. It therefore produces lower premiums and ought to be encouraged, but the existing system discourages it and creates an unlevel playing field between CCFAs and CFAs, and between self-insured CCFAs and insured CCFAs. We should look into that. I am convinced that there must be a drafting error, rather than a deliberate policy.
There are some general points relating to CFAs, other than those raised by the hon. Member for Torridge and West Devon. They concern the attitude of the insurers, who have made the system grind to a halt. The bureaucracy involved in signing a CFA is, as the hon. Gentleman said, extremely complicated. One sometimes needs a 30-page document, which inevitably makes the client ask, "Why, if you tell me it's no win, no fee, do I have to go through 30 pages of closely typed document to come to that conclusion?" It makes clients think that there is a catch, although there is none, but nobody trusts lawyers.
There is also a lack of understanding among members of the judiciary about how conditional fees are supposed to work. The concept underlying the conditional fee is that it is supposed to be swings and roundabouts for the lawyers. In return for taking on the more difficult cases, which they may sometimes lose, the success fee in the winning cases balances out the loss. What the judges
Mr. Burnett : I do not want to hinder the hon. Gentleman too much. Is he convinced that the cases that are more marginal60 per cent. merits, sayare catered for under conditional fee agreements?
Mr. Dismore : They certainly are in trade union schemes. I am not so sure that they are more generally. I think that the reason is the one that I have just identified. To work out the uplift involves quite a scientific formula. I remember that when CFAs first came in, long before the Access to Justice Act 1999, I went on my initial training course to learn how they worked. By then I had been in practice for getting on for 20 years. I was with other lawyers of similar experience, and we all came up with different answers, so it is quite a complicated system to develop.
The hon. Gentleman has a point, and the way to resolve it is for the judiciary to take a broader view of the success fee when looking at its assessment, to try to reflect that swings and roundabouts argument. If a lawyer thinks that he will get a reasonable return on a really good case, such as a road accident, which is usually relatively straightforward, he might be prepared to look at the less easy cases as the quid pro quo.
Mr. Burnett : I should like to know what would motivate the lawyer to do that. Why does he not just keep collecting the 95 per cent. merits cases and not bother about the more marginal ones?
Mr. Dismore : That is because in the more marginal cases the success fee is higher, and therefore, potentially, the profits to be made in return for the risk of taking on the case and losing are higher. That goes back to our earlier argument about contingency fees. It is easy to illustrate the point by talking about contingency fees, though not in the context of CFAs. For example, in America one sees horse-trading between different lawyers bidding for a particular case. They will say, "I will want a 20 per cent. contingency fee"or 30 per cent. or 40 per cent., depending on how serious the case is. They are assessing how much risk they are prepared to take if there is a chance of a higher return. That assessment in terms of the success fee works for CFAs as well, but part of the problem is that the judges are not allowing the system to develop as it should.
Mr. Cash : The hon. Gentleman is somewhat critical of the proposalI think in principle, perhapsof insurance to cover legal expenses. He may be interested to know that my parents have just been involved in a rather difficult case. My father was knocked over by a car. They got into one of the no-fee arrangements, but they had been advised that they could also take out insurance in case they lost. Does that have any bearing on what the hon. Gentleman mentioned by way of criticism of the proposal of insurance schemes?
Mr. Dismore : No, it does not. I think that the hon. Gentleman needs to understand a little more about how
Mr. Burnett : I do not want to carry on this matter for much longer, but there is absolutely no guarantee that the more sure-fire case will be less lucrative than the more marginal case. I will let it rest there.
Mr. Dismore : I simply disagree. The law firms that specialise in personal injury work do not adopt that attitude. It may be found on the margins, with firms that do not deal much with that sort of work, and with some of the firms of the "Sue, Grabbit and Run" type whose advertisements one sees, which will cherry-pickbut reputable specialist personal injury firms do not do that. They will take the more difficult cases and look at those difficult risk assessments.
We could get away from all this by a relatively simple stroke: abolishing the indemnity principle, which underpins the basic concept of costs in the legal system. That is the heart of the problem. If we abolished the indemnity principle, much of the great rigmarole, the great superstructure that we have had to build to get round it for a CFA, would become unnecessary and lawyers could quite easily simply say, "No win, no fee".
The way in which the indemnity principle works at present is against CFAs, because if by a lucky chance the insurer can find the slightest technical defect in the funding agreement between a claimant solicitor and his client, the insurer will not have to pay any costs in the case which he has just lost, even though the client is delighted with the settlement and has made no complaint about the way the case was handled. That absurd rulethe indemnity principlemeans that insurers and their solicitors often make great efforts at the end of the case, going on fishing expeditions to find funding defects instead of paying the costs and moving on to the next case.
The malign effect of the indemnity principle and its ability to sustain satellite-costs litigation are all but bringing the world of personal injury crashing to bankruptcy. Many of the specialist law firms are in severe difficulties. There have been substantial job losses in all the major firms. That obviously could have an impact on access to justice for injured people.
This is not lawyers' special pleading, becausepicking up the point made by the hon. Member for Torridge and West Devonif there are fewer lawyers doing such work, that inevitably means less access to justice. The lawyers who are being driven out by this long-standing satellite litigation are the specialists who do the work more cheaply and more effectively than the generalists. They are the ones who are feeling the pinch.
This satellite costs litigation is a poison in the system which has destroyed relationships between personal injury lawyers and insurers and their solicitors, driven the judiciary to distraction and confused clients. Above all, it is having a catastrophic effect on access to justice by preventing the injured and bereaved from getting
The situation amounts to a fundamental assault on the ability of personal injury lawyers to act for their clients and obtain their damages. The Access to Justice Act abolished legal aid for personal injury and amended the system of CFAs. It was expected then that it would take a year or so for things to settle down. I was on the Committee that considered the Bill, as was the hon. Member for Torridge and West Devon. He may remember some of the exchanges on the matter at the time. We are now three years on, and things could not be worse.
The frustration of claimant lawyers is that they have been shouting about this for over three years, asking for something to be done to sort it out. Their pleas have not been taken seriously by the Government or by the judiciary. There has been a distinct lack of action to try to sort out this serious problem, which is not only having the effect that I have described, but is dramatically affecting cash flows in law firms. The insurers know it, and they are using it as a tactic to try to break the specialist law firms, which they know are their biggest enemies in representing the victims of road accidents, accidents at work and occupational disease. Something has to be done to put these things right, and it has to be retrospectiveto try to put right some of the wrongs that happened as a result of the Access to Justice Act. The easiest way to do that is to abolish the indemnity principle, and to do so retrospectively.
I should like briefly to mention three other matters, not to do with CFAs but vital to access to justice for accident victims. The first is the small claims limit. I have heard a rumour on the grapevine that that limit is to be raised to £5,000 in personal injury claims. I would strongly resist that. Most trade union schemes represent injured people with claims rather less than that, and it would effectively destroy those schemes. Compensation is not as high as people think. The vast majority of personal injury victims would have no access to justice as a result. It would be a retrograde step. I hope that my hon. Friend the Minister can assure me that that is simply a rumour with no foundation, and that there is no intention of raising the small claims limit for personal injury claims.
There has also been some discussion of no-fault compensation, in the context of the review by the Department for Work and Pensions of employers' liability. Again, I counsel my hon. Friend to resist any temptation to introduce it. A reduction in compensation would inevitably follow. The problem with no-fault schemes is that they have been tried in many places around the world, and every single one has failed to provide adequate justice and adequate compensation. Fault-based schemes increase compensation and provide justice, whereas no-fault compensation schemes generally fail to do so.
I also want to mention legal aid for inquests. The fact that it is not generally available is a major flaw in our system. It is not possible to have a CFA for representation at an inquest if there is no claim. Many people feel hard done by if they are unable to have the death of their loved one properly investigated through the asking of proper questions. A constituent of mine who attended my surgery only last Saturday told me
I want to finish by discussing proportionate costsan issue which raises the question of rich man's justice. According to the concept of proportionate costs, one is in effect paid more for pursuing cases involving rich people, rather than poor people, because their loss-of-earnings claims are higher. It also creates a disincentive for rehabilitation, the importance of which has been mentioned. The role of the personal injury lawyer goes beyond just compensation; it includes looking at the client in the round, to see what can possibly be done to help them to get back to work through rehabilitation. However, the principle of proportionate costs can actually exert downward pressure on damages, and, therefore, on the likelihood of rehabilitation being at the forefront of the lawyer's mind, which gives rise to several problems.
I have probably spoken for far too long, primarily because of the many interventions that I have taken. Some serious problems arise in respect of trade union legal schemes. Those problems have to be addressed quickly if we are to maintain that vital part of our legal advice and assistance structure, which provides great back-up to the various other structures. If nothing is done soon, real difficulties will arise and the structure could implode.
Ross Cranston (Dudley, North): I commend my hon. Friend the Member for Doncaster, Central (Ms Winterton) for initiating this debate. This is a very important subject that gets far too little exposure in the House, and today is a good opportunity to address various aspects of it. It was put on the political agenda last year when the document that my hon. Friend showed us, "Legal and Advice Servicesa Pathway out of Social Exclusion", was published by the Department and by the Law Centres Federation. I commend her for taking the initiative in this regard.
Studies on unmet legal need such as that by Professor Hazel Genn demonstrate clearly that deprivation is associated with a failure to seek advice and assistance. Although those studies do not provide a clear indication that law can overcome deprivation, there is sufficient anecdotal evidence to show that law and lawyers can assist. For example, they can assist those who are entitled to compensation, and who would otherwise experience deprivation. They can assist those who have lost their job, or whose housing is threatened and who would otherwise be deprived. They can even help groups of deprived people such as social welfare recipients by taking test cases, so that they are entitled to a higher level of benefit.
On the general point, there are qualifications: law is not always an answer to deprivation. An old aphorism that emerged from the literature of the 1970s points out
I want to deal with a number of specific issues, including private lawyers who provide publicly funded legal assistance, which the hon. Members for Stone (Mr. Cash) and for Torridge and West Devon (Mr. Burnett) concentrated on. They mentioned recruitment problems and the reduction in the number of private solicitors who provide assistance under the community legal service, and my hon. Friend the Minister will doubtless want to respond to those points. It is undoubtedly true, as the legal aid practitioners group has pointed out, that because of remuneration problems legal aid does not hold the same attraction for young lawyers that it perhaps did in the 1970s and 1980s.
Of course, the reduction in the number of solicitors is partly the result of the growth in alternative means of providing legal assistance. My hon. Friend the Member for Hendon (Mr. Dismore) spoke about conditional fee agreements, which are not publicly funded. However, it is true that certain issues need to be addressed. The move away from the old legal aid system through the Community Legal Service certainly constitutes an advance. Under the old system, the concentration was very much on criminal, matrimonial and personal injury work, to the detriment of other areas, such as debt and social welfare. The introduction of the community legal service enables us to address areas that used not to receive the attention that they deserved.
As was said, the Community Legal Service has a number of advantages over the old system. First, it has brought in new providers. The citizens advice bureau in Dudley has a contract to provide advice on debt. Over-indebtedness is a major problem that many people in this country face, particularly poorer people. Such people are now getting advice that they used not to get from solicitors under the old legal aid system.
The second innovation is partnership working. In my area, private lawyers now work with the citizens advice bureau, the local authority and the local benefits shop, which receives local government funding. Under the leadership of its director, Gaynor Phelps, the benefits shop provides a great deal of very useful advice to people on welfare benefits. A partnership approach is very valuable, and as has been mentioned, most of the country is now covered by such partnerships.
In my area, the strategic plan produced by the Dudley community legal service partnership has mapped the provision of legal advice. That has proved very valuable, because it has exposed the fact that big gaps remain in the extent to which legal advice and help are available in Dudley. For example, in part because Dudley lacks the advantage of a law centre, we have a real gap in respect of employment law, for which there are no specific legal assistance suppliers. Some provision is made in respect of housing, but it is clearly insufficient. It is true that the local CAB provides advice on debta subject that I have mentionedbut it is operating at near full capacity. Such mapping has been very useful in exposing
As I said, partnership working has proved valuable, but there is the question of the quality of advice, which my hon. Friend the Minister raised. Contracting and quality marking have proved extremely valuable, but as she said in her opening remarks, we need to look at the effectiveness of the work done: the relationship between the quality of the advice given and the outcome for the client. I know that the Legal Services Commission is doing work on that. My hon. Friend the Minister may have to write to me, but I should be very interested in the initial findings of that inquiry.
Incidentally, I commend the research that the commission has done in this area, and others. I should like to pay tribute to Steve Orchard, who is retiring as head of the commission. Over many years, he has been Mr. Legal Aid in this country and he has driven the agenda forward. He may not have always won universal plaudits, but he has been a fine public servant.
The Community Legal Service has been innovative in a third way, in that it has sought new ways of working. Mention has been made of Shelter, which has unrivalled knowledge and experience in the area of housing. However, it now also provides housing advice under contract. In the west midlands, it provides telephone advice on housing matters, a valuable innovation.
I was surprised to learn that the partnership innovation budget has given rise to 76 projects. A number of projects around the country, such as housing possession and court duty solicitor schemes, did not exist before the community legal service was introduced. Also, the "Just Ask" website provides a lot of factual advice. I am not sure that people who are deprived or who live in deprived communities would necessarily have access to the service, but I am sure that people in a position to offer advice will be able to benefit from the site.
I return to the question of money. For the purposes of the debate, hon. Members received briefings from organisations such as the Legal Action Group, which has enormous knowledge. Those of us with an interest in the matter are always pleased to see the arrival every month of the group's publication Legal Action. It contains detailed advice on areas of law relevant to the deprived. Shelter also provided briefing, as did the Advice Services Alliance.
The hon. Member for Stone touched on the cost of immigration work, which has risen considerably. The outside bodies that I have mentioned are rightly worried about whether the increasing amount of money going to immigration and crime will mean that there will be less going to other important areas, such as housing and debt advice, welfare advice and so on. I hope that my hon. Friend the Minister will say something about that.
Another of the Community Legal Service's innovations is the formalisation of back-up services. That has been especially valuable in giving front-line agencies, such as law centres or lawyers in private practice who provide publicly funded legal services, specialist advice on certain matters. That specialist advice is being provided by organisations, such as
Law centres provide assistance under the community legal service, but they are also funded separately. I have been associated with law centres in an indirect way for many years. I was in one in Coventry in the 1970sI turned up every week to provide assistanceand I wrote quite a bit about them in the 1980s. One advantage of law centres is that, in addition to looking at complaints from individual clients, they can look at group problems and approach matters in a more systemic way. A valid point that has been put to me is that the contract funding by the Legal Services Commission does not necessarily recognise that group work. However, that group work is vital when it comes to test cases involving, say, helping a group of tenants in an area or assisting a deprived community to overcome social exclusion problems. As I understand it, one of the difficulties now faced by law centres is that, because the commission funds individual clients, it cannot also fund group work, which has to rely on other sources. Again, I hope that my hon. Friend the Minister will say something about that.
Mr. Drew : My hon. Friend makes an important point. I agree that we need to recognise that when there is a collection of individual cases, they should be put together so that a change can be effected in the law or in regulations. The snag is that relying on state fundingwhether it be from central Government or local governmentcould mean that a conflict of interest could arise. That would not happen with individual cases because, presumably, the individual's benefit is what is being pursued. However, a collectivised case could give rise to a dilemma about how far it should be pursued, as sometimes the piper calls the tune. Does my hon. Friend agree that that is problem?
Ross Cranston : I do, and law centres in the past have suffered. Some have even suffered fatally because they have taken on their own local authorities, which funded them. However, a little-mentioned aspect of democracy is the way in which the Government often fund agencies that take them on. Many equal opportunities cases taken to the European Court of Justice have been funded by the Equal Opportunities Commission. That is an example of how the Government fund cases taken against them. If it has not done things right, a local authority may need to be big enough to say that a law centre has a valid point and is entitled to take it on in court.
My hon. Friend the Member for Hendon mentioned conditional fee agreements. I was going to say something about them, but he has dealt with them so exhaustively that I am not sure that I need add anything. However, there are problems that need to be set out. I support CFAs. I believe that, if legal help can be funded in ways other than by public moneys, then it is better to use those moneys in other areason debt, housing and so onwhich the legal aid system did not deal with
There have been difficulties, notably in connection with a number of Court of Appeal cases on uplift and with cases involving before-the-event insurance. As has been noted, another problem has been the approach adopted by insurance companies, which have tried to undermine particular contracts. Another problem is the satellite litigation to which CFAs have given rise. I should be grateful if my hon. Friend the Minister would give the Department's assessment of CFAs. The Department has published a research paper by Professor Fenn on the impact of conditional fees on the selection and handling of cases. Unfortunately, the research was rather dated as it dealt with the situation before the implementation of the Access to Justice Act 1999, but the matter must be kept under constant review. My hon. Friend has raised some serious points about the effectiveness of CFAs in personal injury cases, both for road accidents and persons injured at work.
I commend lawyers in private practice who provide legal advice and assistance in pro bono work. Even some of the large City law firms provide considerable sums for funding pro bono work in deprived communities, which is to be commended.
My hon. Friend mentioned small claims and referred to the special provisions for personal injury cases. I want to draw attention to the importance of small claims courts for persons in deprived communities. Over the years, several studies have been made of the effectiveness of such courts. Professor John Baldwin at Birmingham has carried out much of that work. His most recent assessment is that the general increase in the jurisdiction to £5,000 has worked well. The district judges continue to adopt an investigatory approach and people continue to bring cases.
Problems remain with the enforcement of orders issued by district judges in the small claims jurisdiction. We need constantly to monitor the effectiveness of an important avenue for bringing cases, especially now that the jurisdiction limit is £5,000.
Other institutional arrangements are important in providing redress. The proliferation of ombudsmen helps people with particular problems. I am most familiar with the banking and financial services ombudsman, who has provided a free avenue to help people with problems in that sector.
The Lord Chancellor's Department is an important Whitehall department, which has now come out of the shadows. It is only too easy to have a go at the Lord Chancelloras hon. Members did during the debatebut under his direction, with the assistance of my hon. Friend and other Ministers, the Department is now at the heart of Government. As demonstrated by this debate, it is doing important work in addressing the social justice agenda on which Labour was elected in 1997.
Mr. David Drew (Stroud): I am delighted to take part in the debate and I congratulate the Parliamentary Secretary, Lord Chancellor's Department on securing it. As I am not a lawyer, I shall speak only as a
Like my hon. and learned Friend the Member for Dudley, North (Ross Cranston), I do not have a law centre in my area. My experience is drawn entirely from dealing with the community legal service and with the Stroud citizens advice bureau, under the leadership of Caroline Pymm, Lindsay Waddington, Ann Horner and Chris Lindegaard. I am indebted to them not only for all their work in the community but also for their advice to me. They regularly bring to my notice some of the problems that they face. MPs should be aware of the enormous amount of casework that such people undertake. We never cease to be amazed at the complexity of some of the cases with which we have to deal, but regular contact with my local CAB has shown me that the amount and range of work carried out and the degree of expertise involved should never be underestimated. CAB workers are under tremendous pressure and we cannot allow the problem to grow, because if it does, quality will suffer.
My CAB covers a semi-rural area and dispenses a wide range of legal advice. The problems, in order of salience, are debt, which accounts for about 40 per cent. of inquiries, employment, housing, welfare and benefits. Some of those issues overlap, which adds to the complexity.
Many people have to seek advice at some time, especially during life-changing experiences, such as divorce, the loss of a job, family illness or bereavement. The number of people seeking advice increases constantly, but as my hon. Friend correctly pointed out, many people leave it too late, which can add to the problem. For example, people often ask for help with financial problems only when the problems are acute. It is then difficult to help them. It is hard to advise people if they are in denial, do not understand the complexity of the situation or have avoided it for far too long.
I am extremely grateful to my friend, Marie Jennings, who has taught me much about consumer advice. We often underestimate the level of financial inadequacy that existsindeed it affects us all. A number of debates have been held on that subject and I do not want to cover the same ground. However, it is important to acknowledge that people's inability to understand their pension entitlement or the extent to which they have not contributed to sickness cover and so on can come crashing in on them when they hit a life-changing experience and believe that they have a nest egg on which to draw. When they look at the small print, they realise that their predicament is excluded or that the provision is inadequate to deal with what they need.
I am a great fan of the Community Legal Service. The people who work for it are far more proactive and take the lead to make a partnership work. It should be congratulated on that. I have had several meetings with Pamela Judge in my constituency to try to establish both a local and a countywide partnership to deal with the subjects that have been highlighted.
It is good that we are trying to match area concerns with legal and wider advice that needs to be made available. Examining a raft of different issues and selecting those that have specific relevance to the area that one represents and the people who live there is a good process.
The hon. Member for Torridge and West Devon (Mr. Burnett) alluded to some difficulties. It is fair to acknowledge that the whole range of issues cannot be covered. That means that people feel some points have been downgraded. In a rural area, people who want advice must travel because it will not go to them. We must consider that and ways in which to fill in some of the gaps.
Like other hon. Members, I have always appreciated the benefits of free legal advice, even for as short a time as half an hour. Not much can be covered in that time, given the complexity of some subjects. Nevertheless, free legal advice is important and we must not denigrate that service.
I do not know whether my area is unusual, but the work of local solicitors is often taken for granted. They give up their time, not only in formal, individual advice sessions with their clients, but in a range of other activities. They are important in their community and they try to act for its benefit and represent it in many different ways. Many lawyers are interested in the political scene, but I refer specifically to the community activities in which they engage. We should pay tribute to them for that.
However, we must acknowledge that in some respects the legal service is patchy and we must try to improve that. I gave some examples in a couple of interventions. I hope that we shall try to overcome some of the inadequacies and make it clear that we want a first-rate service. If people need legal or other forms of advice, it must be good, accurate and accessible. We should never compromise on those three points.
I want to highlight a few matters briefly. I have taken a close interest in mental health issues. We need to acknowledge that the law needs reform on many subjects, but on none more than mental health. The Government rightly understand that, although I am not sure whether they have devised the right reforms. My local citizens advice bureau, the CLS and I have had detailed discussions about the way in which the benefits system does not help to deal with people who have mental health problems. The advice that they need should also be improved. For example, we need better advice on cases in which people have not received their benefits or have had them removed. People who suffer from mental illness are vulnerable and better advice is, therefore, especially important. The resources should also be more than proportionate.
I have dealt with people who are or have been sectioned, or who have been threatened with sectioning. At a time when they need access to the law, they rely on the community psychiatric nurse, who is the person responsible for recommending that they should be sectioned. Yet that person is often responsible for ensuring that they receive fair advice. More often than not, that puts people in a difficult position. We must also consider who constitutes a friend of someone who suffers from mental illness. A friend or a carer may need to be brought in.
Last but not least, for many months if not years, I have had arguments with psychiatrists about medication. It is crucial that people who have been
Employment issues are becoming more complicated. My hon. Friend the Member for Hendon (Mr. Dismore) spoke about that from a lawyer's point of view. We must also consider it from the client's point of view. The Government, to their credit, have introduced many reforms, but we must acknowledge that complexity is increasing because the nature of work is becoming more complicated. We must, therefore, ensure that people who give advice are up to date and able to deal with complexity or able to recommend others who can tackle it.
I have come across several examples of older people who have not been well advised because they are in vulnerable positions, for example, living in nursing or residential homes, or about to enter such a home. Such issues constitute a legal minefield and again, there is a need for access to the appropriate legal and wider advice.
My hon. and learned Friend the Member for Dudley, North spoke about renewing neighbourhoods. People in neighbourhoods have a range of individual problems and bringing them together is a problem. Would it be better to invest resources in collective advice provision instead of trying to deal with individuals? We must strike a balance. As my hon. and learned Friend said, the Government have been brave to move towards dealing with problems in a wider way rather than on an individual basis. However, we must understand that that does not mean that individual problems go away. The Government must get the balance right. I am sure that they are moving in the right direction. Much remains to be done, but the debate has given us a useful opportunity to raise many matters.
Again, I congratulate my hon. Friend the Minister on leading the debate so well and giving us a chance to discuss important issues.
Ms Rosie Winterton : We have had a full debate. It is obvious that several experts are present, and clear points have been made. I shall try to answer as many as possible, but if hon. Members want further clarification, I hope that they will come back to me. As I have said, this has been a very wide-ranging debate. I certainly welcome the support that hon. Members have given not only in taking part in the debate in the first place, but on the point that I have been trying to get across: there is a link between the poor provision of legal and advice services and social exclusion, and it is something that we must get right.
The hon. Member for Stone (Mr. Cash) made a point about patchy provision. We need to recognise that partnerships in different areas of the country are in various stages of development, so there are bound to be different levels of provision. We have to ensure that all partnerships end up with a high quality service. He mentioned confidentiality, and there is obviously a balance. For example, when the Legal Services Commission awards contracts, it should be able to say how many people have benefited from the service that is being funded, but that does not necessarily have to compromise confidentiality.
On the point about asylum claims, there are concerns about the quality of work being carried out by some immigration and asylum suppliers. Many of those concerns relate to the London area. Of course, the Office of the Immigration Services Commissioner regulates the type of advice being given, and the Legal Services Commission has taken a number of measures to identify and address poor quality work. The specialist quality mark, regular audits, accreditation to specialist panels, and the tightened merits test have been introduced, but we are aware of the problems and we will take measures to ensure that the quality reaches the standards that we expect.
The hon. Members for Stone and for Torridge and West Devon (Mr. Burnett) mentioned problems with the recruitment and retention of lawyers doing publicly funded work, and we take very seriously the concerns that have been expressed about those potential problems, especially in relation to family law. We recognise that the profession has made a number of representations about remuneration levels, bureaucracy and auditing processes. We constantly monitor the supply base monthly, and there is no widespread problem at the moment in providing adequate coverage in England and Wales.
The Criminal Defence Service had 10 fewer officers, out of 2,900, at the end of the year than at the beginning. There was a net gain in six months of the year and a net loss in the other six. On the civil side, it is true to say that there has been a 5 per cent. reduction in the number of solicitors' officers to 4,681. However, the number of not-for-profit officers doing civil work has increased by 12.8 per cent., but in no way are we complacent about the situation. We take on board the points that have been made, and we constantly monitor the situation and are in dialogue with the professions about it.
Mr. Burnett : I am pleased that the hon. Lady is monitoring the issue, but she must understand that the vast bulk of legal aid work is done by private practitioners. I point out to her again that paragraph 2.7 of the 200102 annual report of the Legal Services Commissionher commissionstates:
I could read more from that paragraph, but I do not think you would let me, Mr. Benton. It is not good enough that the hon. Lady is considering the issue; we want to know what she is doing about it.
Ms Winterton : I have told the hon. Gentleman the figures, and I have said that there are concerns about them. We certainly accept the need to look to the long term, as he has suggested. We have made about £1.5 million available to encourage prospective practitioners to undertake publicly funded work, by providing support for training contracts and grants for tuition fees. Those grants have been awarded already, but let me repeat that we are taking the concerns seriously. We are constantly considering any new evidence that becomes available, and I can give the hon. Gentleman an undertaking that we will continue to do so and to
Mr. Cash : Will the Minister be good enough to tell me whether she or the Lord Chancellor, in his eminent position, has had discussions with the Chancellor of the Exchequer? I gather from what the hon. Lady says that the bottom line is that this is not a matter of principle; it is just that the money is not being made available for legal aid. Will she give me an assurance that arrangements will be made to have a discussion with the Chancellor of the Exchequer and to give us a proper report on what takes place?
Ms Winterton : I can assure the hon. Gentleman that of course we would not look at the problem in isolation. He can rest assured that we have very clear lines of communication throughout the Government.
The hon. Member for Torridge and West Devon referred to conditional fee agreements in an interesting exchange with my hon. Friend the Member for Hendon (Mr. Dismore), who has some expert knowledge of that issue. We have commissioned an in-depth study of the take-up of those agreements and after-the-event insurance. The study will examine exactly what has happened since April 2001, when the changes were introduced, and the impact that the new regime has on legal services. The report is expected to be submitted to the Lord Chancellor in the summer of 2004, and it will certainly take on board a lot of the points that the hon. Gentleman has made. The figures show that a large number of people who previously could not get justice for the problems that they facedperhaps because they were just outside the legal aid limitshave been able to gain access to justice through conditional fee agreements.
Mr. Burnett : I hope that the hon. Lady will make the point that those of us who were not enamoured of conditional fee agreements certainly proposed an alternative: a contingency legal aid fund, which was dismissed by the Lord Chancellor. That proposal came from Liberal and Conservative Members, as well as the Bar Council, and we thought it a very satisfactory solution to the problem.
Ms Winterton : There is nothing to stop the Bar Council proposing ideas for a private contingency legal aid fund if that is what it wishes to do.
My hon. Friend the Member for Hendon talked about the value work being carried out by the trade union movement, and my hon. and learned Friend the Member for Dudley, North (Ross Cranston) also mentioned before-the-event insurance. I am very aware from my own trade union contacts that there have been difficulties in relation to that. My right hon. Friend Baroness Scotland has certainly considered the points that have been made, especially by the TUC and trade union solicitors. I think that it would be best for me to write to the hon. Member for Torridge and West Devon, especially on the recent changes and how they may affect things.
Mr. Burnett : Will the Minister circulate copies of the letters to me and the hon. Member for Stone?
I can tell my hon. Friend the Member for Hendon that there are no plans to increase the small claims limit for personal injury cases to £5,000.
Mr. Dismore : My hon. Friend mentioned the CFAs, and I look forward to her letter with interest. Can she also ensure that she covers the indemnity principle, which is the root cause of the problems? I am not sure whether she can say anything about that now, but perhaps she can include it in the letter.
Ms Winterton : I will certainly write to my hon. Friend about that.
My hon. and learned Friend the Member for Dudley, North drew attention to the fact that his local citizens advice bureau advises on debt on his area. A number of hon. Members referred to the problems that that causes. He also said that the strategic plan had shown up gaps in housing and employment provision. Perhaps it would be a good idea to ask the regional Legal Services Commission representatives to meet him to discuss ways in which his local partnership could access other funds in the area and to determine whether any assistance could be given to plug those gaps. That initiative might be useful.
On law centres, the LSC funds multiparty actions at the representation level. Group work is not funded, but some of the successful cases at that level have an impact beyond their immediate circumstances, so law centres can take up the cases to which my hon. and learned Friend referred. He also said that an increase in immigration and criminal work might squeeze civil expenditure on debt and housing. We always monitor publicly funded legal service expenditure to ensure that we are prioritising and targeting the areas of greatest need. There will be pressures when a limit is placed on resources, but those are constantly under review.
My hon. Friend the Member for Stroud (Mr. Drew) also mentioned debt in his area. In addition, he said that local solicitors and mental health services need to be involved. Such debates are important because they help
Members of Parliament have a great role to play in developing partnerships in their areas. It was apparent in Rochdale that the interest of my hon. Friend the Member for Rochdale (Mrs. Fitzsimons) in launching the partnership and co-ordinating much of the work had been invaluable in getting the project off the ground. I am glad that my hon. and learned Friend the Member for Redcar (Vera Baird) has joined us from the main Chamber. Her involvement in a domestic violence project was also invaluable. The message is that Members of Parliament do not need to be legal expertsalthough, heaven knows, we are slightly outnumbered by legal experts this afternoonto be facilitators or to assist partnerships with their work. I hope that hon. Members will join me in encouraging other Members to get involved. We are trying to recognise such work by awarding beacon council status to councils such as Barnsley. However, there is much we can do to get involved and to help to establish a valuable service for our constituents.
I conclude with one simple message. It has been a good debate, and we are all agreed that legal and advice services can help to prevent social exclusion. I hope that Members of Parliament will give them their full support not only in Parliament, but in their constituencies where they can play a part in getting them off the ground and in giving them all the support that they can.