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Going beyond legal aid and beyond the remit of the noble Lord, Lord Carter, will the Government commission a review into changes in court procedures
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Returning to the report, we shall need a full study of the proposals when we have had time to consider them. What is the Government’s timetable for implementation, and will it involve new primary legislation? If so, will that be brought in as an addition to the draft Legal Services Bill?
11.58 am
Lord Falconer of Thoroton: My Lords, I am grateful for the measured responses of the noble Lords, Lord Kingsland and Lord Goodhart. Perhaps I may say at the outset that throughout my Statement I should have referred to my noble friend Lord Carter of Coles rather than Lord Carter. I apologise for the discourtesy. I shall deal with the specific points raised.
The noble Lord, Lord Kingsland, asked how this would fit in with the Legal Services Bill. The proposals are freestanding in the sense that they are not dependent on that Bill. However, alternative business structures that the Legal Services Bill would allow—for example, partnerships between barristers or partnerships between barristers and solicitors—will enable them to bid more effectively once competitive tendering comes in. The noble Lord went on to emphasise, entirely correctly in my view, the issue of quality, and I made it clear in the Statement that proper arrangements must be in place to deal with the question of quality. I refer noble Lords to pages 10 and 14 of the report setting out the specific proposals made by my noble friend Lord Carter of Coles in relation to quality. In practice, what he is proposing is that the monitoring and judging of quality be handed over to the Law Society and the Bar Council respectively and that they do it on the basis of peer review. That will take some time to introduce, but I believe it to be a sensible proposal: those who know should judge the quality of those who provide, and only those who satisfy the relevant quality standards can then be in a position to bid for legal aid work.
The next point raised by the noble Lord, Lord Kingsland, is the worry about geographical effect, another issue that the noble Lord, Lord Carter of Coles, addresses. What happens if you live in Cumbria and you are serving a geographically difficult market? He makes the point, and we accept it, that one size does not fit all. It will cost more to provide legal services in Cumbria than it might in some inner-city urban areas.
The noble Lord, Lord Kingsland, then made the point that many of the difficulties in long cases come not from procurement of defence services but in how the prosecution is conducted. Again, we wholly agree. The report does not in any way limit us in addressing the issue of, for example, the very high-cost case, in terms of demand as opposed to procurement of defence services. However, I have absolutely no doubt that the way in which we procure defence services will
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The noble Lord, Lord Kingsland, continues in that vein by saying that he is not satisfied with the proposals of my noble friend Lord Carter of Coles on very high-cost cases. I would ask him to look in detail at paragraphs 4.17 to 4.23, the relevant detailed recommendations. What it amounts to is that only those who are capable of doing the long cases can bid. There should be a rigorous tendering process. There should be involvement of the prosecution, the defence and the judge in identifying how long the case should last. It should be value for money based only on that. The noble Lord asks whether consideration was given to brief fee and limited number of days. Yes, it was. This is the conclusion that my noble friend Lord Carter of Coles came to. I would therefore ask the noble Lord, Lord Kingsland, to consider in detail what he says about it.
I think that I have dealt with all the points made by the noble Lord, Lord Kingsland. The noble Lord, Lord Goodhart, made the point on quality that I hope I answered in response to the noble Lord,Lord Kingsland. The noble Lord, Lord Goodhart, makes the point that he is anxious about limiting the number of criminal cases that an individual solicitor or barrister can take. My noble friend Lord Carter of Coles made it clear that client choice is a vital part of our system. But if we want best value tendering, it has to be, has it not, on the basis of tendering for a number of cases and winning that tender? So, a balance has to be struck between client choice and rewarding the lawyer for efficiency by allowing him to tender on price.
I cannot guarantee that the proposal deals completely with legal aid deserts, but in the long run it will make more money available, particularly for civil and family cases. It is also clearly focused on the proposition, as I said in answer to the noble Lord, Lord Kingsland, that one size does not fit all. It will address the issue. I cannot guarantee that it will do so everywhere but I believe that it will make real progress.
I say no to ring-fencing the civil legal aid budget. I think that it is a bad idea because it reduces flexibility. It means that we could not shift funds from one to the other when that would be appropriate.
The noble Lord, Lord Goodhart, then raised a point on court procedures with which I completely agree. The now implemented proposals of the noble and learned Lord, Lord Woolf, have had a significant effect on civil litigation. I believe that we can do that in criminal cases as well, both in the magistrates' court and in the Crown Court. The judges have said time and again that the day of the six-month case or above is over; those cases should be shorter. The
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Finally, the noble Lord asked whether implementation will require primary legislation. It will not. The Legal Services Bill will go ahead but none of our proposals requires primary legislation. We have published today a consultation document, which is also in the Library. The consultation period ends in October 2006. The report gives a timescale, to which I have referred from time to time. Broadly, it is that by April 2007 greater numbers of fixed fees will have been introduced, and that by April 2009 the best value tendering will have begun and the quality assurance arrangements will be in place. That is what we propose; it is on that that we are consulting, and we should get on with it.
12.05 pm
Lord Clinton-Davis: My Lords, does my noble and learned friend agree that it is difficult, if not impossible, to forecast price changes with accuracy? They may well alter beyond anything capable of being foreseen. Therefore, is it envisaged that solicitors so affected will be able to make suitable representations to the legal aid authorities? I readily confess that I have not had an opportunity to see the report.
Lord Falconer of Thoroton: My Lords, my noble friend is absolutely right that forecasting is extremely difficult. Opportunities will be available for representations to be made. However, one of the themes that comes out from the report is that forecasting of demand can be a great deal better than it has been in the past. Some of the problems that historically exist with legal aid have been because the Department for Constitutional Affairs and the Legal Services Commission have got their forecasts completely wrong. We need to improve that dramatically.
Lord Thomas of Gresford: My Lords, will the noble and learned Lord accept that it is impossible for us to give proper criticism of these proposals today? Obviously there is to be a consultation period, but no primary legislation is envisaged. Following that period, how are we to discuss and contribute towards any changes that may emerge to the proposals now before us?
Lord Falconer of Thoroton: My Lords, of course I accept what the noble Lord says. More time is required to look at the documents in detail, but it is right that I make a Statement to the House on the publication of the document, so that I can explain the position. Because primary legislation is not required, the way in which input can come is through responding to the consultation. If the usual channels take the view that the subject is appropriate for a further debate in this House, no doubt they will make that available. That is how we normally operate.
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Lord Campbell-Savours: My Lords, my noble and learned friend referred to the view of the noble Lord, Lord Carter of Coles, that £100 million would have been saved in one year, plus the value-for-money savings arising out of tendering. Do the Government accept those figures? Do they believe that that level of economy would be gained arising out of these changes? In relation to the 50 per cent on 1 per cent to which the noble Lord, Lord Kingsland, referred, will those statistics stay the same or change?
Lord Falconer of Thoroton: My Lords, the£100 million to which my noble friend Lord Carter of Coles referred was putting aside tendering; it was on the basis of fixed fees and greater efficiencies, with additional savings in relation to tendering. Although we might quibble over the edges, we accept in principle that such savings could be made. In answer to the second question about the 50 per cent on 1 per cent of cases, yes—there needs to be a dramatic shift in that statistic.
The Countess of Mar: My Lords, I am relieved to hear what the noble and learned Lord has had to say about value and quality so far as legal aid is concerned. I have been closely associated with three major group actions: the Gulf War action, the sheep farmers’ action, and the measles, mumps and rubella action. Something like £9 million of taxpayers’ money has been thrown down the drain on those group actions because, as I ascertained from the Legal Services Commission, no spot checks were done on work on the cases. There was no assessment of the competence of the lawyers to deal with the cases, and there seems to have been little follow-up for four or five years about whether the cases were going to go anywhere anyway.
I do not know whether the noble and learned Lord recalls, but in the time of his noble and learned friend Lord Irvine, I had an Unstarred Question on this matter, and his noble and learned friend arranged for me to go to the Legal Services Commission. I am frankly appalled at the waste of taxpayers’ money and the distress that has been caused to the litigants by the failure of these cases. They should not have been run at all if they were not going to succeed.
Lord Falconer of Thoroton: My Lords, I am very conscious of the sorts of issue that the noble Countess raises. It is not just a problem for those who end up receiving poor advice, which sometimes people do. It is also about the fact that this limits the budget for other people who have legitimate claims. My noble friend Lord Carter of Coles recognises, quite separately from any of the tendering or economic changes, that the quality assurance proposal that he made will itself have an effect on the providers’ market, because it will reveal some people who should not be able to tender for legal aid work.
Lord Goodhart: My Lords, since there seem to be no further Back-Bench questions, I want to raise one point on procedure. It seems to me that cumulatively the secondary legislation that will implement the
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Lord Falconer of Thoroton: My Lords, it obviously will not all come at once. It will come gradually over a period of time; for example, a new graduated fee scheme for Crown Court advocacy, or a new graduated fee scheme for solicitors in the Crown Court. I will take away the point made by the noble Lord, because underlying his point he is asking me to think of a way whereby there could be a proper debate about the arrangements. That seems to be sensible; although I say that with some degree of trepidation because of the usual channels, but in principle what he is saying sounds sensible.
Government of Wales Bill
12.12 pm
Lord Kingsland moved Amendment No. 1:
The noble Lord said: My Lords, I would like, in the context of the amendment, to thank the noble Lord, Lord Davies of Oldham, very much indeed for writing to me about what he considers to be the true interpretation of Clauses 37 and 84. The noble Lord will be relieved to know that I do not intend to take this matter any further. The noble Lord, Lord Davies of Oldham, is now on record, as a result of writing that letter, as stating, unequivocally, that the joint effect of Clauses 37 and 84 is that there will be no circumstances in which any Welsh Minister can assert that he is not bound to appear before a committee of the Assembly, or the Assembly itself when asked. That seems to me to be a satisfactory conclusion to the matter and I am sure that his letter will be reposing in the Library. I beg to move.
Lord Livsey of Talgarth: My Lords, I, too, thank the Minister for the letter that he wrote to the noble Lord about matters that were raised on Report. In particular, he will remember that I raised the points about Ministers of the Crown who had subsequently become First Ministers or Deputy Ministers of the National Assembly. It is quite clear from what he has written in his letter—and I thank him for its clarity—that this is not a complication, and I accept that assurance.
Lord Crickhowell: My Lords, I have not seen the letter. Could a copy be put in the Library?
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Lord Davies of Oldham: My Lords, I can confirm that the letter is already in the Library. Perhaps I would have been wiser to have copied it to all Members who participated in the debate in Committee but I addressed it to the noble Lord, Lord Kingsland. I am grateful for the noble Lord’s response. It justifies the wet towel technique after midnight after all, and I am very pleased by his response.
Lord Kingsland: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 46 [The First Minister]:
Lord Livsey of Talgarth moved Amendment No. 2:
“( ) The First Minister shall tender his resignation to Her Majesty if the Assembly resolves that the First Minister or the Welsh Ministers no longer enjoy the confidence of the Assembly.”
The noble Lord said: My Lords, we return to the amendment that we tabled on Report. The Minister will remember that this matter has been drawn to our attention by the organisation Tomorrow’s Wales, which is chaired by the Archbishop of Wales.
It is a serious amendment because there appears to be no real ability within the Bill for the First Minister to be dismissed in circumstances where there might be a vote of no confidence in him or her in the Assembly. The amendment states:
“The First Minister shall tender his resignation to Her Majesty if the Assembly resolves that the First Minister or the Welsh Ministers no longer enjoy the confidence of the Assembly”.
This would ensure that the First Minister can be removed from office by a vote of no confidence. However, at present—and in contrast to the position under the Scotland Act 1998—the First Minister is not obliged to stand down immediately if he loses a vote of confidence but only when a new First Minister is appointed. A First Minister can therefore only be removed by also electing his successor at the same time. It is a rather strange situation which corresponds with the practice in Germany, where it is known as the “constructive vote of no confidence”. Consequently, it has the effect of significantly weakening the control of the Executive by the Assembly.
I know that in Committee the Minister said, in particular, that the First Minister will remain in office, as it states in the Bill, until a successor is elected. We do not think that that is a desirable state of affairs if there is a loss of confidence in the First Minister.
As to the appointment of a new First Minister, the argument is that there surely must be someone in government in between times from whom the civil servants who are the staff of the Welsh Assembly Government can derive their authority to act. It should not be too difficult to find a person within a ministerial competence of the Assembly Government to take over the role of First Minister temporarily in the interim period. We do not see why it should be that, in spite of there being a vote of no confidence, the First Minister should continue. Clearly a vote of no confidence means that the First Minister has lost
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Lord Davies of Oldham: My Lords, I do not think there is a great deal of difference between us, nor is there a major issue at stake. I recognise that the noble Lord, Lord Livsey, pressed this issue at Report stage and he has brought it back at Third Reading. At Report stage I had hoped to indicate—I obviously did not succeed—that the provisions of the Bill are absolutely clear: when a First Minister loses a vote of confidence, that immediately triggers the process for his replacement. The question is, what happens in the interim? The noble Lord and I are in agreement that a vacancy could not just be declared. Like nature, Government abhor a vacuum, and if there is no elected Member in charge, one has to have confidence that a civil servant should occupy that role but that runs counter to every constitutional principle that we follow as a nation in any of our elected bodies.
The noble Lord says that another Minister could take that position. But another Minister might be a competitor for the role. How on earth could we guarantee that there would be an easy judgment about who should fulfil this role and how would that be arrived at?
We are saying that the First Minister, having lost a vote of confidence, is a standby Minister until his or her successor is elected. The moment that election has taken place, he or she goes. It is similar to the removal van being at No. 10, when things move with considerable dispatch. Things might take slightly longer in this respect, but the principle is clear. The Prime Minister is in office until his successor takes up the new position and has kissed hands. For the Assembly, it is clear that the outgoing First Minister carries on for a very short time until the election of his successor. I hope that the noble Lord recognises that that is a reasonable provision. The Bill makes it quite clear that that is exactly what happens.
Lord Livsey of Talgarth: My Lords, I hope the Minister will not mind my saying this, but his comments brought to mind something that happened during the 1970s. I went to Downing Street; the crowd were shouting “Out” to the Prime Minister, while his successor was already in No. 10. I remember thinking that that was rather amusing. Of course, one cannot just wander up to the door of No. 10 these days.
I gleaned from what the Minister said that this was not a problem. Some people might not want to be First Minister—in fact, I suspect that there could be quite a number. I am sure it is not beyond the wit of the Presiding Officer to establish who is in that position and perhaps a successor could be found.
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