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Session 2006 - 07
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Public Bill Committee Debates

Revised Funding Code

The Committee consisted of the following Members:

Chairman: Frank Cook
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Bellingham, Mr. Henry (North-West Norfolk) (Con)
Blunt, Mr. Crispin (Reigate) (Con)
Crausby, Mr. David (Bolton, North-East) (Lab)
Eagle, Maria (Parliamentary Under-Secretary of State for Justice)
Foster, Michael Jabez (Hastings and Rye) (Lab)
Grogan, Mr. John (Selby) (Lab)
Heath, Mr. David (Somerton and Frome) (LD)
Hendrick, Mr. Mark (Preston) (Lab/Co-op)
Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)
Hughes, Simon (North Southwark and Bermondsey) (LD)
Khan, Mr. Sadiq (Tooting) (Lab)
Swayne, Mr. Desmond (New Forest, West) (Con)
Taylor, Mr. Ian (Esher and Walton) (Con)
Truswell, Mr. Paul (Pudsey) (Lab)
Tyrie, Mr. Andrew (Chichester) (Con)
Winnick, Mr. David (Walsall, North) (Lab)
Keith Neary, Committee Clerk
† attended the Committee

Eighth Delegated Legislation Committee

Wednesday 18 July 2007

[Frank Cook in the Chair]

Revised Funding Code

2.30 pm
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I beg to move,
That the Committee has considered the revised Legal Services Commission funding code.
It is a pleasure to serve under your chairmanship, Mr. Cook. I am sure that you will keep us well in order.
The funding code, which is created under section 8 of the Access to Justice Act 1999, provides a set list of criteria and procedures by which the Legal Services Commission operates the provision of civil legal aid. The revised funding code introduces three changes to the operation of legal aid in family cases. We are dealing with minor and technical changes and I should like to explain them briefly. Hon. Members will have seen the explanatory memorandum, and it is very explanatory in this instance.
The first of the changes consists of amendments to the funding code to facilitate introducing new levels of service in private law family cases and care proceedings. The second concerns removing residential assessments from the scope of disbursements payable by the legal aid fund. These assessments are typically order-in-care proceedings. The third change concerns the need to apply a representation test to care proceedings. That will ensure that separate representation is granted only where it is necessary in an individual case.
The new arrangements are important to our aim of ensuring that we can make changes to legal aid provision, which will ensure that we focus the resources available. As hon. Members will know, those are now more than £2 billion and have been increasing in recent years. We want to make sure that that money goes to help as many people as possible in providing the legal help that they seek.
We have a somewhat strange arrangement because the funding code itself is before us rather than a statutory instrument. The funding code criterion procedures being modified under section 9 of the 1999 Act require any changes to the code to be approved by both Houses of Parliament before coming into effect. That is why we have the code itself in front of us. There is no separate order or regulation governing the changes to the funding code, but rather the entire advice code itself is laid before each House. That is why hon. Members may see the debate as slightly unusual.
Simon Hughes (North Southwark and Bermondsey) (LD): My understanding of the changes is as the Minister has expressed it. May I ask her two linked questions, which I hope will help us to proceed quickly? Will she confirm that there has been no objection by any major representative groups to these three changes of formula? As there is a bigger set of changes relating to funding, costs and schemes, will she tell us when and how those will be published? Obviously people watching our debates and following this will look in our direction, but their minds will be on other and bigger things. It will be helpful to know when further news will be available on that front.
Maria Eagle: The hon. Gentleman is correct. There have not been any major objections to these technical changes from representative groups or those who take an interest in the operation of legal aid. We have even had some comments in favour of them, and we could not say that about every potential change that is being proposed to legal aid at the moment.
Mr. Sadiq Khan (Tooting) (Lab): Enjoy it.
Maria Eagle: I am, while it lasts.
In terms of how some of the more controversial changes are being taken forward, the hon. Gentleman will be well aware of the extensive consultation that has taken place. There is ongoing consultation about the precise nature of some of the fee schemes and changes have been, and are being, made in light of those representations. Most of the changes will be made via the Legal Services Commission’s contracting arrangements with providers in different fields of legal aid. Some orders will come before the House under the negative procedure to facilitate some of that, so there will be more opportunity for debate if, for example, parliamentarians pray against them. However, as the hon. Gentleman will be aware, we are at a stage of what has been a very long process of consultation and debate around and about in legal circles and in the House, various Committees, Westminster Hall, Question Time and various other formats that are open to parliamentarians to deal with some of the issues.
I hope that that assists the hon. Gentleman. On the basis that these are technical changes that do not implement any of the changes that are controversial outside this place, I hope that the Committee will be content to agree to the motion.
2.36 pm
Mr. Henry Bellingham (North-West Norfolk) (Con): It is a pleasure to serve under your chairmanship again, Mr. Cook, and I am grateful to the Minister for the way in which she presented today’s business. I had a quite lengthy speech on legal aid, looking generally on the impact of the Carter report and the Government’s implementation of it, and the relevant Select Committee report, but judging by the mood of the Committee, it would be better if I stuck exclusively to what is before us.
The Chairman: Order. It is not a question of mood; it is a question of remaining within the scope of the topic for debate and discussion.
Mr. Bellingham: I certainly will not push your patience on that, Mr. Cook.
I thank the Minister very much indeed, because when I first picked up the papers from the Vote Office, the funding code was available to us and it took a little while to work out where the changes were to come within it. I am grateful to her for making copies of the code available to the Committee with the changes marked up.
I take on board what the Minister says. There has been a substantial debate on the legal aid changes, and the revised funding code makes small technical changes, including to the representation criterion for child care cases to prevent the unnecessary duplication of representation. I know that that has concerned some outside bodies and organisations. Perhaps she can say exactly what level of outside consultation took place. The hon. Member for North Southwark and Bermondsey touched on it briefly, but has, for example, the Law Society been involved in discussions? I know that her Department has had lengthy meetings with the Law Society about legal aid more generally, but has it been asked to comment on the specific change? What about some of the other children’s groups, such as the National Society for the Prevention of Cruelty to Children, Shelter and the Child Poverty Action Group? Are those voluntary organisations and charities that specialise in helping children comfortable about removing the right for individual representation, even when it is perfectly obvious that the other individuals involved, such as the mother or the guardian of the child, are going to be represented by the same lawyer and are, as it were, completely at one in all the discussions and arguments that are taking place, and there is no conflict whatever? There have been cases where it has been customary to appoint separate representation. Will the Minister comment on that?
Finally, the third change removes from the scope of legal aid the funding for disbursements relating to residential assessments. I have looked at that briefly, and at first it seemed as if there might be some concern, but on further investigation, I understand that all the interested parties are comfortable about that and support the Government’s drive to focus the legal aid budget on the areas where it is needed and can add value and help people to have their legal problems solved.
In the main, the changes are technical. They do not go to the heart of the changes in legal aid that the Government are proposing. However, they are essential if the legal aid system is to move forward. There would be problems without the revised code. Therefore, we support the Minister.
2.40 pm
Simon Hughes: I, too, welcome you to the Chair, Mr. Cook.
I have three questions. The first is procedural. There are periodically changes to the funding code. For example, in the papers that we were given we are told that there were amendments in 2005 and consequential amendments in 2006. These changes are crucial to practitioners, whereas we just fly down one them, have a look and off we go once we have approved them. May I deduce from that that there is an annual review and an annual consideration of whether anything needs to be changed? I am concerned that the people out there doing the work have a system that is easy to manage and follow.
If there is an annual review process, that is fine. People will know that and feed in their thoughts and representations. There will be a cycle for consultation: a date by which people know that it will be over; a date by which they will know the proposals; and a date by which things will be brought to Parliament. To do that annually strikes me as being rather frequent. My instinct is that that could be done every two years because I sense that it is a lot of work to have to do every year. I know that there are changes to different bits of the code, but I am trying to think of all the practitioners and agencies. They should be able to look at a document that is not for ever changing, because it is difficult to keep tracking the changes. I am sure that the Minister understands what I am saying.
My second question follows the line of inquiry of the hon. Member for North-West Norfolk. As the Committee knows, there are all sorts of cases to consider. All the alternative ways of representing children may be possible and different ones will be suitable for each case. In some, it might be logical for the interests of the children and the parents to be represented by the same person. That is entirely proper if there has never been a dispute. In others cases, it might clearly be important that the child or children should be represented separately from the parents.
There are certainly cases in which there is a need for separate representation of some children. For example, the older children might want to stay with a particular parent, but the younger ones, perhaps children by a different father who are not being treated in the same way—they might be abused or violence might be directed only at them because they come from a different relationship—will need to be represented differently. I want the Minister to be able to satisfy herself, and therefore us, that such protections will arise. It is important to get those things right.
My last point is about residential care. I understand the argument that the legal aid fund should not be asked to fund an expensive residential placement for the assessment of a child’s need, but what is done now? A long time ago, when I did that sort of work professionally, a report would be commissioned from an independent authority—social services, a child psychologist or somebody from the health service. My constituency has the Bloomfield clinic on the Guy’s hospital site which is an adolescent psychological and children’s services clinic. In order to be assessed, children are taken in—sometimes on their own, sometimes with their parents—and stay there for a day or more for observation and engagement with professionals to see how they relate. That is one way in which abuse can be discovered.
I want to be satisfied that the payment will still be available, when justified, for professional advice, including advice that necessitates taking children out of the home to spend some time in a specialist setting where they can be free of the pressures at home and free of all the other people who might put pressure on them not to say things or own up to things. We need to be satisfied that children can have those services and that the state will pay for them, even if they are not overnight residential services.
Sometimes, the use of those services might involve travelling, if one lives in a village. It is not in our jurisdiction, but the Minister will remember two of the most famous child care cases in recent history, in Orkney and the Western Isles. I am sure that those islands did not necessarily have all those services. Travelling might be involved and people might have to taken away. I need to be satisfied that, if children need specialist attention to get the reports that the court needs to work out what is in their best interest, it will not be prejudiced by the changes.
The Chairman: As hon. and right hon. Members know from past experience, Delegated Legislation Committees can last more than an hour or less than a minute. I have been measuring the climate, while also receiving semaphore signals that some hon. Members might wish to remove their upper outer garments—although nothing more than that. Those who wish to do so may do so, in the interests of conducting a nice, relaxed and affable exchange of views.
2.46 pm
Michael Jabez Foster (Hastings and Rye) (Lab): I apologise for being late. My hon. Friend the Minister might have dealt with the issue that I want to raise. I have heard arguments from child care practitioners about separate representation. Perhaps she can help by giving me an assurance. The practitioners made a point about their inference from the code that there will be some restriction on the separate representation not only of children, but of parents. Parents often have a common cause, but frequently a solicitor needs to advise a mother—it might be the father, but it is usually the mother—that she will best resolve the care of the children by leaving her partner. How could the single representative of both parents give such advice? I am seeking an assurance that the criteria do not imply that appropriate separate representation of parents would be denied.
2.47 pm
Maria Eagle: The hon. Member for North-West Norfolk raised some points about the right to individual representation, which were echoed by both the hon. Member for North Southwark and Bermondsey and my hon. Friend the Member for Hastings and Rye. There will be no restriction on separate representation where there is a conflict of interest that might require separate representation, whether between children or parents. It would not be correct to expect representatives to deal with conflicts of interest. Where there is such a potential conflict, separate representation will still be available.
The provisions will ensure that separate representation can go ahead where there is no conflict of interest and it is in the interests of speed and economy for a single representative to represent more than one party, whether children or parents. There has been concern that we should clarify that that is the case, but there has been no objection to the arrangements proposed in the funding code before us. I assure hon. Members that, where there is any issue of conflict of interest, separate representation will be available and will be payable out of legal aid, where that is appropriate according to all the other tests that apply.
There has been a full, 12-week consultation on residential assessment. It ran from 1 March to 24 May, before the funding code had been drawn up and revised. Throughout that time, the Legal Services Commission talked to stakeholders and re-examined the proposals in view of what they said, not least to ensure that there was a full understanding and agreement on the appropriateness of the arrangements in advance of the final family fee schemes being published last month. There has been public consultation in the sense that it has been on the Legal Services Commission website, and there have been the usual contacts through professional bodies and representative groups with those who have a particular interest. I hope that that gives some assurance.
The hon. Member for North Southwark and Bermondsey asked about annual reviews of the funding code. Reviews happen as and when necessary, although it tends to be less frequently than annually. The last revision was back in 2005. His proposal of revising the arrangements every year would therefore increase the burden of those who are interested in the funding code. There is always full consultation with stakeholders when a review happens.
Although I understand the hon. Gentleman’s points about it being a bother for everybody to look at something as chunky as the funding code, when that forms the basis of the way in which one earns money, I think that it is perhaps not as onerous as otherwise. To make arrangements so that we do it every year may increase the burden. It is as and when, and that seems to work relatively well on the basis of the experience since 2000, when the arrangements were set in place.
Simon Hughes: I was not arguing that it should happen every year if it does not need to, but arguing for as few changes as possible. I wanted people to focus their minds so that any changes that they want to think about are dealt with in one go so that the code changes as infrequently as possible to make life easier. If the Minister can assure me that that is done, it is a good thing.
Maria Eagle: I think that, in that case, I can. We seem to be in utter, total agreement, which is possibly a first. It might happen that we can agree in such a way again—who knows?
I think that I have dealt with all the points raised and on that basis I hope the Committee will agree that we have considered the code.
Question put and agreed to.
Committee rose at seven minutes to Three o’clock.

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