The
Committee consisted of the following
Members:
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.
The new
levels of service set out in the revised funding code will provide the
framework within which new legal aid family fee schemes will operate. I
do not intend to rehearse the debates that many of us have taken part
in as recently as last week about the whole framework of legal aid
changes that are coming
forward. That is slightly outwith the scope of todays debate. We
are simply setting out some minor technical changes to the scope of the
code which will facilitate some of the changes that are being discussed
at great length elsewhere. However, the changes to the code do not of
themselves make those changes. In that sense, we are not dealing with
the entire gamut of legal aid reform, which concerns many hon. Members,
but with facilitating some of that in
future.
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 Commissions 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
todays business. I had a quite
lengthy speech on legal aid, looking generally on the impact of the
Carter report and the Governments 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
childrens 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 Governments 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 waythey might be abused
or violence might be directed only at them because they come from a
different relationshipwill 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 childs 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 authoritysocial services, a
child psychologist or somebody from the health service. My constituency
has the Bloomfield clinic on the Guys hospital site which is an
adolescent psychological and childrens services clinic. In
order to be assessed, children are taken insometimes on their
own, sometimes with their parentsand 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 garmentsalthough 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
motherit might be the father, but it is usually the
motherthat 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. Gentlemans 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 againwho
knows?
On the funding
of residential assessments, hon. Members will know that legal aid is
intended to finance legal advice and assistance and is not intended to
finance therapeutic input. There has been wide
recognition that the legal aid fund has been used to do such a thing and
that is what we are trying to preclude. We are not precluding access to
treatment, therapy, training or other interventions at the discretion
of the court. Such things fall within the remit of local authorities,
NHS bodies or the child and adolescent mental health services, all of
which can be asked by the court to deal with interventions in
particular cases.
By
changing the funding code we are not removing the capacity of the court
to make such arrangements. We are removing the Legal Services
CommissionI
nearly said the Legal Aid Boardfrom having to fund those
arrangements through moneys that are intended for giving legal advice
rather than for paying for therapeutic input. We are not fettering the
capacity of the court to make such orders and such arrangements where
they think it necessary in individual
cases.
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
oclock.