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We should bear in mind one key point. Most of our constituents, thankfully, do not have any interface with the legal system at all, but when they do it is usually through a tribunal. That is why it is important that tribunals are as user-friendly and informal as possible
and that the applicant is put completely at ease and feels that they can relax and not be in any way intimidated. If too many lawyers are brought into the process, everything becomes more potentially intimidating and formal, and jargon is used. It so happens that all three Front Benchers today are barristers at law. We often appear in court without realising how our customs and idiosyncracies are not especially appealing to the wider public whom we are trying to represent. That system is not user-friendly. One of the great strengths of the tribunal system is that it can put people at ease and deal with their problems informally and effectively.
Let us keep lawyers out of it if possible. However, on occasions, tribunal cases get extremely complicated. The hon. Member for North Southwark and Bermondsey (Simon Hughes) gave some examples in Committee. At some point, a tribunal case may be adjourned pending further information. Points of law may arise and the applicant may have to seek legal advice. Perhaps taking legal advice from a firm of solicitors is the only way in which the applicant can keep the case on the road. There should be an efficient, quick and effective system that allows such applicants to get legal aid. We are therefore sympathetic to new clause 3 and amendment No. 4.
Mr. Bellingham: That is a good question. I believe that employment tribunal cases should come under the same system as other tribunals. We must consider cost, and I am keen to bear down on the cost of legal aid. We have held a lengthy debate on the matter and I do not support the Governments changes. However, we could bear down heavily on, for example, the cost of expert witnesses in parts of the legal system, and more heavily on the cost of highly complex criminal cases. We could examine what some of the top criminal QCs earnparliamentary questions on that were answered this week, showing some extraordinary figures. There is a world of haves and have-nots. Top QCs earn a vast amount of money while junior barristers earn little and can hardly make a living. I would therefore include employment tribunals in the entire tribunal system.
Let me consider amendment No. 9. My hon. Friends and I believe it is one of the most important amendments that we will consider this afternoon. It would remove the general commissioners for tax from the new unified structure, which sets up the new tribunal system. Conservative Members support the new unified tribunal structure, which is the result of a huge amount of preparation and work, flowing from the Leggatt report, Green Papers, much debate and a great deal of pressure from the different Departments that sponsor tribunals. It makes sense to try to bring the tribunals together into a unified system and have cross-referencing of infrastructure. Judges will also be able to be more versatile.
However, I should like the Minister to reflect on what the general commissioners do. There are roughly 2,000, with 214 clerks. The hon. Member for North Southwark and Bermondsey said that there were 244,
but I believe that the figure is 214; perhaps we both misread the letter from Susan Balchin, who is secretary of the Association of Clerks to the General Commissioners of Income Tax.
The general commissioners do a superb job. They are lay people and volunteers, who sit in the nearest town to where the taxpayer who will have a hearing lives. The appellantthe taxpayercan therefore go to the local town and appear before general commissioners who are local, lay, unremunerated people with common sense. The system is based on informality and an understanding that the appellants problems will be sorted out by lay people who understand the community. It could be a farming community, an industrial community, a community that consists mainly of retired people or one that is part of an inner city. The essence of the current system is that lay commissioners understand the community from which the appellants come and sit in judgment in an informal, unintimidating atmosphere on the appeals of those who have problems with their tax affairs.
I am fortunate, because so far I have never had a tax appeal, touch wood. I do not know whether any of my hon. Friends have had a tax appeal, but we all have constituents who experience problems with their taxes. We have all experienced constituents coming to our surgeries with a pile of papers probably 4 ft high, and extraordinarily complex tax problems. If they want to appeal against Her Majestys Revenue and Customs, they can take the case to the general commissioners, who are local people.
That process will be replaced by a tribunal system, chaired by a judge with a professional clerk. It will be much more intimidating and far more formal. Furthermore, it will be much more remote because the new tribunals will sit at regional centres. Those presiding will not have the local knowledge, which is now so important.
Let us not forget that the lay commissioners give their services on a pro bono basis; they get only some expenses. They have local knowledge and their positions have existed for 200 or 300 years. The current system builds on the best in localismchoice and flexibility. That is what my party stands for.
The system is quaint and old-fashioned but it works. We feel strongly that if something works well, we should retain it. Why build a system on the basis of one size fits all? Why not have some flexibility? If it aint broke, dont fix it. The cost of trying to fix it will be considerable.
The current system costs approximately £5 million. Getting rid of the general commissioners and the clerks, setting up the new system with judges and bringing it into the tribunal system, with professional clerks who have no local knowledge and sit in regional centres, will cost perhaps two and a half times as much as the current system. A cost of roughly £5 million could increase to £12.5 million unnecessarily. Will that
result in the taxpayer and consumer getting a better service? The answer is manifestly no. The consumer will have to take a tax appeal to a system that is far more formal and much more remote and costly.
Schedule 6 contains a list almost a mile long of all the different tribunals that the Bill affects. One sort of tribunal should not be included. We make a plea to the Minister, even at this late stage, to listen to the general commissioners. They say that their system works extraordinarily well and that they do a superb job for our constituents. We ask the Minister to listen to them and exempt them, even at this late stage.
Mr. Bellingham: I do not want to take anything for granted. If one takes too much for granted, one loses trust and credibility. However, I make a commitment that, if the amendment is not accepted and if we are elected at the next election, we will reverse the proposals and ensure that the general commissioners are kept out of the unified tribunal system.
It is quite wrong and quite unfair that the general commissioners are not to be paid proper remuneration for their loss of office. I am not going to make a spending commitment this afternoon, because under our proposals there would be no loss of office, so compensation would not come into it. I find it strange that the commissioners are not being offered any form of compensation.
The hon. Member for North Southwark and Bermondsey pointed out that the Taxes Management Act 1970 provides for a retirement age of 70, with the possibility of an extension to 75 at the request of the general commissioners. Many of the clerks are solicitors, and partners in local firms of local solicitors. Many of them are worthy and knowledgeable local people; I have had the pleasure of meeting some of them. In fact, I had the pleasure of addressing their recent conference in London. Many of them structure their professional lives by scaling down their office work and their general practice when they reach their late 50s or early 60s. They then rely on employment as a clerk to the commissioners until the age of 70 and, in many cases, beyond. That is how they run their lives; they make the choice to serve the general commissioners in an honourable and assiduous way, yet they are to have that office taken away from them without any compensation whatever.
This is in stark contrast to the sub-postmasters and mistresses, who will get compensation, as will part-time coroners clerks. A direct parallel can also be drawn with the abolition of the office of clerk to the peace, when the Crown Court was established. Clerks to the peace received proper compensation for loss of office.
The hon. Member for North Southwark and Bermondsey pointed out that representatives of the National Association of General Commissioners wrote to the Minister, the noble Baroness Ashton of Upholland, to ask for a meeting in March 2006. They heard nothing until the beginning of December, when
they were invited to telephone the Minister to discuss the situation. They were given the direct telephone number of her diary secretary, but when they eventually got through, they were told that the Minister would not be prepared to make an appointment with them. This saga went on and on, until they eventually had a meeting with the Under-Secretary of State for Justice, the hon. Member for Bradford, South (Mr. Sutcliffe), yesterday morning. I hope that the Minister would agree that that is no way to treat an honourable and decent group of people who are staring loss of office in the face without any compensation. They are only asking for a fair hearing.
Will the Minister look at this again, even at this late stage? Will she accept our amendment No. 9? Will she in any event make sure that there is proper compensation for loss of office? I should like to give an indication, Mr. Deputy Speaker, that I should like to ask the Houses leave to vote on that amendment at the appropriate stage. On that basis, I hope that the Minister will listen to what we have said this afternoon.
Vera Baird: I shall take the items in the same order in which they were proposed, if that is acceptable to all the parties who have spoken. First, I shall deal with amendment No. 4, which deals with legal aid
Vera Baird: New clause 3 was indeed first; the hon. Gentleman is right. I hope that he will not mind if I deal with legal aid generally first, then come to his specific proposal on legal aid afterwards.
Amendment No. 4, which was also tabled by the hon. Member for North Southwark and Bermondsey (Simon Hughes), deals with legal aid. Many points have been raised about legal aid, and in particular about bearing down on the costs involved. The proposals that we have introduced following the Carter review are intended to do that.
The hon. Member for North-West Norfolk (Mr. Bellingham) has talked about the cost of expert witnesses, and we are already bearing down on that. We are looking at how expert witnesses are remunerated, and at how they should be remunerated in the future, under legal aid. He mentioned a recent parliamentary question in which the earnings of what he called top QCs from legal aid were set out. It is true that those earnings are considerable, but it is only fair to point out that the figures are not necessarily the earnings of those individuals for the year in question alone. They can run back to earlier years, because some cases are very long. At the same time, figures have also been published, although not in answer to that particular question, showing the legal aid fees of what I am sure the hon. Gentleman would call top solicitorsthey are certainly the top-earning solicitorsand they, too, were very sizeable indeed. I do not believe that there is a clash between the two sides of the profession in this regard.
The hon. Member for North-West Norfolk referred to the junior Bar, about which I also have concerns.
The real problem for junior members of the Bar is not the level of legal aid payment, however; it is more to do with their not being fully occupied.
Rob Marris: I salute what my hon. and learned Friend has done in trying to bear down on legal aid costs. There is a huge disparity in the system involving the moneys paid to top criminal barristers. I speak as a solicitor with no brief for barristers, but I understand that the figures for barristers pay that were recently quoted included VAT, which does not go into the barristers pocket, and the office costs that they have to pay to run their business. That is like ascribing the turnover of a business to the owner of the business as earnings. The figures are still very high, and they should be borne down on, but we must bear in mind that the netted-down figures are not quiet as alarming as the gross figures that are now in circulation.
As I have already said, I do not think that VAT is applied in those circumstances, but I might be wrong. Let me emphasise that this information was disclosed as a consequence of a parliamentary question put to me by an hon. Gentleman from the main Opposition party. My hon. Friend is right, however. We must also take into consideration what we, in our rarefied atmosphere, call chambers expenses. Those include the cost of running the business, and they are shared among all the barristers who share secretarial assistants, clerking and so on. I have already made probably the biggest point about this, which is that the feesparticularly of barristers, but probably of solicitors, toooften relate to cases that have gone on across more than one tax year. We must therefore not get too carried away, but there is none the less a need to bear down on excessive legal aid costs, as my hon. Friend happily acknowledges, and which, on an earlier occasion, the hon. Member for North-West Norfolk has also acknowledged.
Mr. Benyon: On Second Reading, I spoke of an experience that I had had when a vexatious claim was made against me as a small businessman, and of the effect that it had on my time and my business. Legal aid obviously provides access to justice in many cases, but does the Minister agree that it must also be measured in the context of taking action against those who use the system for vexatious cases? A provision exists that allows for tribunals to impose a bond whereby a cost can be imposed on an individual who brings a vexatious case; this is strongly supported by organisations such as the CBI. That system is not being used enough, however. Is there anything that the Minister can do to assure us that where provision exists for bonds to be put in place, it will be used?
I am more familiar with the procedure in the legal aid system in which another party to a case has the option of writing to the Legal Services Commission to say that in their view the legal aid is being misused, and to set out a case. That is a tool that can be used as part and parcel of the dispute, and it sometimes is, but if it is well grounded, the Legal
Services Commission will be obliged to look at it. That is a step that ought to be taken in the circumstances that the hon. Gentleman has outlined.
The amendment is similar to amendments tabled in Committee, and in the Grand Committee and on Report in the other place. In both Houses, the amendments were pressed to a vote, and in both Houses they were defeated. One of the greatest assets of tribunals is that people do not usually need a lawyer to pursue their point. As the hon. Member for North-West Norfolk puts it, Lets keep lawyers out of it if we can. Tribunals are not courts. Unlike courts, most tribunals do not rely on strict rules of evidence; they adopt a much more inquisitorial approach. They question the user to find out the relevant information, and do not therefore place the burden entirely on him to present his argument. The majority of tribunal users can relay their evidence by answering questions, without the need for legal representation.
For those who qualify financially, however, legal aid is available in the form of a legal help scheme. Although that does not provide representation, it does provide advice and assistance and can pay for counsels advice within its fee structure. For example, in the situation conjured up by the hon. Member for North-West Norfolk, in which someones case is adjourned mid-tribunal for a complicated point of law to be tackled, resort to legal help would make available solicitors or counsels advice on the point in question.
The Government understand that the tribunal experience can be daunting for some. As the new tribunals come on stream, there will be a wave of effort to ensure that users of tribunals receive good information. We will improve information and provide the opportunity for the case to be informally evaluated before the hearing process gets under way, which will be hugely helpful and give pointers to people seeking to represent themselves at tribunal.
We acknowledge, however, that legal aid for representation has a role in tribunals. It is available for the Asylum and Immigration Tribunal, the Employment Appeal Tribunal and the Mental Health Review Tribunal. It is also available, in cases of special difficulty, for all tribunals where the exceptional funding criteria are met. I think that the hon. Members for North-West Norfolk and for Newbury (Mr. Benyon) both referred to that.
We would like to do more. As I said on Second Reading and in Committee, we are reforming the legal aid system. We are putting lawyers on fixed fees for standard cases, but with exceptional cases being paid for by the hour, which will help control the legal aid budget. The reasons for those changes are partly so that we can rebalance the legal aid budget towards the civil side, including social welfare law. That is imperative, and it is our purpose. Those are my comments about the broad issue of legal aid.
New clause 3 would require the Lord Chancellor to provide legal aid for judicial review hearings transferred to the upper tribunal. I understand the point, and have immense sympathy with it. Were there a judicial review in the court, legal aid would follow. Were the judicial review moved across to the upper tribunal, however, legal aid would follow only if the exceptional funding criteria were brought into use. I understand that that difference is unacceptable. We
intend to change the funding code, which does not require an amendment, so that legal aid for judicial review in the High Court is available if a judicial review is transferred to the upper tribunal. Consequently, the scope of legal aid will be amended.
I hope that that meets the nub of what the hon. Member for North Southwark and Bermondsey was getting at with new clause 3. It seems to me that we should go further and monitor the transfer of cases to the upper tribunal, which we will do. We should also monitor the change that will inevitably come as a result of the implementation of the Bill and the existence of the upper tribunal: what would now have to go to judicial review would instead be able to go as a statutory appeal to the tribunal. If, in due course, that started to happen, we would not want people to be disadvantaged by the non-availability of legal aid. For the time beingI hope that this meets the need that the hon. Gentleman has identifiedwe intend to ensure that the scope of legal aid is extended, so that if a case is transferred to the upper tribunal, legal aid will be available if it is a judicial review.
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