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Lord Archer of Sandwell: First, I apologise for partially pre-empting the later amendment in the name of the noble Lord, Lord Phillips. If we had seen the amendment at an earlier stage, we might have been able to make representations about the grouping. But that is one of the vicissitudes of debate in this Chamber.

I am most grateful to my noble and learned friend Lord Falconer for the information he has given. I should like to read it at leisure--if we ever have any leisure during the course of the Bill--and to reflect on it. I am content to leave the matter there. Perhaps I may say a few words on what he said about the duty on local authorities. I believe there is a genuine problem. Those local authorities which are the most conscientious could be the most heavily penalised while the free riders get away. However, I note what my noble and learned friend said. He is obviously optimistic about the future for encouragement and co-operation. I should be running contrary to my normal nature if I were to argue with that. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Hunt of Kings Heath: This may be a convenient moment for the Committee to adjourn. I suggest that the Committee stage resumes at 8.45 p.m.

[The Sitting was suspended from 7.42 to 8.45 p.m.]

[Amendments Nos. 54 and 55 not moved.]

Clause 5, as amended, agreed to.

Lord Kingsland had given notice of his intention to move Amendment No. 56:

After Clause 5, insert the following new clause--

Independence of solicitors and barristers

(" . Nothing in this Act shall prevent there continuing to exist an independent solicitors' profession and an independent Bar.").

The noble Lord said: In view of what was said by the noble and learned Lord the Lord Chancellor in his response to Amendment No. 1, I shall not move Amendment No. 56.

[Amendment No. 56 not moved.]

Lord Clinton-Davis moved Amendment No. 57:

Page 4, line 12, leave out ("appropriate") and insert ("necessary").

The noble Lord said: I understand that the Government will make available a fixed amount of resources each year and that it is the duty of the commission to allocate those resources. The number and type of people and cases to receive assistance each year will depend on the resources allocated and the demand. The first question which arises is: is there any danger of the money available running out and, if so, what happens then?

There is nothing in the Bill--I should not have expected there to be--to indicate how much the Government intend to make available for legal aid. However, they have said that it is not their intention to

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reduce current spending overall. There is nothing in the Bill which would commit this or any future Government to continue spending at or about current levels.

The amendment, which is only a probing amendment, will ensure that the "necessary" rather than the "appropriate" level of resources are committed by the Government. I beg to move.

Lord Goodhart: Amendment No. 58, which stands in my name, is grouped with Amendment No. 57. Their purposes are the same. The effect of the Bill is that civic legal aid will be cash limited. Clause 6 provides that:

    "The Lord Chancellor ... shall pay to the Commission the sums which he determines are appropriate for the funding of services by the Commission".
We all recognise that the person who determines what is appropriate is not the Lord Chancellor, but the other Chancellor: the Chancellor of the Exchequer. We believe that there must be some criteria for deciding what is appropriate. It is not appropriate for the Lord Chancellor, or still less for the Chancellor of the Exchequer, to decide simply out of the blue what is the appropriate sum to provide for services funded by the community legal service.

Under Clause 5(4), the legal services commission is rightly given the duty to inform itself of the need for services. That is relevant to the commission's duty to prepare its own plans for services, but it is also highly relevant in deciding what is the appropriate total sum for the funding of the service. Whichever Chancellor it is who takes that decision, it should be taken, surely, in the light of the information provided by the commission under Clause 5(4). That is the purpose of the amendment. I hope that the Lord Chancellor will be able to give some indication of what factors will be taken into account in deciding what is the appropriate sum.

The Lord Chancellor: There is an important difference between Amendments Nos. 57 and 58. I deal first with Amendment No. 57 in the name of my noble friend Lord Clinton-Davis and the noble Lord, Lord Kingsland. They have proposed an amendment which would require the Lord Chancellor to pay the sums to the legal services commission which he determines are necessary, rather than appropriate, for funding the community legal service.

By comparison, in Amendment No. 58, the noble Lords, Lord Goodhart and Lord Phillips of Sudbury, wish to amend Clause 6(2)(a) and Clause 7(1) to impose a duty on the Lord Chancellor and the commission to have regard to the information on the need for services which has been collected by the commission under Clause 5(4). In the case of the Lord Chancellor, it will be when he is determining the appropriate sums for the funding of services by the commission. In the commission's case, it will be when settling its priorities for the funding of services.

I am willing to consider further the amendments tabled by the noble Lords, Lord Goodhart and Lord Phillips, and to come back to the House on Report. The Lord Chancellor and the commission would inevitably consider need and the setting of priorities in allocating

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money to the community legal service. But I agree that amendments along these lines may provide an important commitment on the face of the Bill that the need for services which has been identified by the commission will be taken into account.

On the other hand, with respect to my noble friend Lord Clinton-Davis and the noble Lord, Lord Kingsland, I could not accept the form of words which they propose in Amendment No. 57. It bears the meaning that I should make available the sums which I determine are necessary to meet all the needs that have been identified. That would not be to live in the real world. Would that I could guarantee to meet every need; but I cannot. Whatever form of words may emerge, they cannot restrict the essential discretion which must be had if we are to meet priority needs under the disciplines of a controlled budget as distinct from an open-ended one.

On the basis of those indications about the course which I propose to follow on Report, I invite my noble friend to withdraw the amendment.

Lord Clinton-Davis: As a denizen of the unreal world, I have listened to what my noble and learned friend has said and I should like to reflect on it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Goodhart had given notice of his intention to move Amendment No. 58:

Page 4, line 12, after ("appropriate") insert (", having regard to the information gathered under section 5(4),").

The noble Lord said: I shall not go quite as far as did the noble Baroness, Lady Wilcox, earlier today by saying, "Gosh, thanks". I certainly welcome the words of the Lord Chancellor about this and I look forward to seeing what form of words he produces. Therefore, I shall not move the amendment.

[Amendment No. 58 not moved.]

[Amendments Nos. 59 to 65 not moved.]

Lord Kingsland moved Amendment No. 66:

Page 4, line 24, at end insert--("( ) Where, in an individual case funded as part of the Community Legal Service, particular services are provided by a person offering specialist advice and assistance on a referral basis or specialist advocacy, regulations shall require that person's remuneration to be quantified and paid separately from other items in the case.").

The noble Lord said: This is one of a number of amendments which refers to the question of referral and specialist advocacy. There are two situations which I wish to draw to the attention of the Lord Chancellor.

The first concerns the responsibility of the commission when looking at categories of cases rather than individual cases. In this case, Amendment No. 93 urges the commission, in the interests of justice, to set out those services which it believes should be provided by way of specialist advice or assistance offered on a referral basis or requiring specialist advocacy. In circumstances where the commission concludes that such cases merit such treatment, the amendment goes on to require that appropriate funding arrangements are made.

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This amendment seeks to meet the concern that standards of special advice and advocacy may be excessively market-driven by the existing clauses in the Bill. In the medical profession, there is a clear distinction between a general practitioner and the specialist consultant. A consultant can become a consultant only after several years of training and he alone can provide specialist advice. In my submission, that approach is also appropriate to legal advice; and in circumstances where that approach is not taken, an individual who is in receipt of legal services funded under this Bill is likely to be adversely prejudiced. That is the basis of Amendment No. 93 and the other similar amendments.

By contrast, Amendment No. 66 concerns the behaviour of the commission in distributing money to individual providers of legal services. Here, the object of the amendment is to ensure that advocacy fees and referral advice, when obtained as part of the funding of an individual case, should be ring-fenced and paid separately from other items in the case.

In my submission, it is significant that the word "representation" does not appear in the Bill in relation to the new scheme for civil legal aid. Representation by a specialist advocate, and the referral of the case to a specialist, are essential features of litigation, aimed at upholding a person's rights. If payment for such services is not ring-fenced, it will become lost in the general allocation of funds for the particular type of litigation or other mechanisms for resolving disputes. I emphasise that the amendment is not to protect the Bar alone. It would equally protect the remuneration of a solicitor advocate or even a welfare rights worker undertaking tribunal representation within the community legal service. Such fees are ring-fenced under the new fast-track regime for civil litigation.

The real danger is that a lump-sum payment will be available for a case, but that a specialist referral may be paid by the referrer at very low cost--which would not reflect the value for money intended by the Government. The Lord Chancellor has said on a number of occasions that, in formulating the Bill, he is not engaged in a cost-cutting exercise, but wants more control over the legal aid budget.

9 p.m.

Lord Goodhart: The principle of equality of arms, as I said earlier, requires that somebody who is publicly funded should not be put at a serious disadvantage against the other party of the case, who has access to whatever advice he is able and willing to afford. That does not mean that the level of representation provided for a party who is publicly funded should necessarily be the same as that of the other party. I have experience of cases where the Legal Aid Fund has authorised the instruction of leading counsel simply because the other party has done so. That is not in all cases necessary or appropriate. There are certainly cases in which instruction of junior counsel would be perfectly adequate.

In recent decades the whole practice of law has become increasingly specialised. One has, in a way that did not exist 30 or 40 years ago, lawyers and advice

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agencies--paralegals as well as fully qualified lawyers--specialising in aspects of welfare law, housing law and immigration law, as well as in the more traditional subjects. In those circumstances, access to legal advice and, where necessary, advocacy on a referral basis will be necessary in many cases if the publicly funded part of the proceedings is to enjoy the level of skill, advice and assistance needed if the party in question is to fight on reasonably equal terms. Recognition of that should be clearly written into the Bill and acknowledged by those responsible for administering the community legal service. That is why I seek to follow the noble Lord, Lord Kingsland, in supporting the amendments.

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