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Lord Goodhart: Before the amendment is withdrawn, perhaps I may raise a further question. The noble and learned Lord seems to have indicated in what he has just said that there can never be an inconsistency between value for money and the interests of justice. That is not a view which I would accept. Speaking for myself--and I know that my name is attached to an amendment which says so--I would not suggest that it would be appropriate to remove references to "value for money" from the Bill.
However, it is perfectly possible that the best value for money may be obtained from someone who provides a poor service at a very low price. That may be better value for money than that obtained from someone who provides a good service at a moderately expensive price. It is a little like choosing which airline to fly with. For example, one may have the choice of a dirt-cheap flight to Tenerife with some ropey airline run by an outfit from Kazakhstan operating a few former Aeroflot planes which may, in a sense, be better value for money than one would get from British Airways. But it is surely not the Bill's intention to say that one must take a service which is very cheap and not very good in preference to a service which is good and not cheap.
The Lord Chancellor: If the service was of no value or of poor quality, it would not represent value for money. We shall lay down quality standards which will have to be adhered to. If they are not adhered to, we shall not regard ourselves as receiving value for money. I am talking about a mix of quality, value and reasonable charging.
Lord Phillips of Sudbury: Having heard those comments, I am content to wait to see what emerges at Report. There is no suggestion or intention to remove the concept of value for money from the Bill. Amendment No. 77 refers to obtaining the best long-term value for money on certain bases. I am ready to withdraw my amendments. As I say, I look forward to hearing what emerges at Report. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 68 and 69 not moved.]
Clause 7 [Services which may be funded]:
Lord Renton moved Amendment No. 70:
The noble Lord said: In the absence of the noble and learned Lord, Lord Simon of Glaisdale, I wish to move Amendment No. 70 with which has been grouped Amendment No. 78. Those two amendments respectively suggest that subsections (1) and (2) of Clause 7 be left out of the Bill. I assume that the noble and learned Lord tabled these amendments purely from
I should just mention in passing that the noble and learned Lord tabled Amendment No. 82--it is not grouped with the amendments I am discussing--to leave out Clause 7(4), on which the same point arises. I beg to move.
The Deputy Chairman of Committees: If this amendment is agreed to, I cannot call Amendments Nos. 71 to 76 inclusive.
Lord Falconer of Thoroton: I rise with some diffidence to deal with the drafting point made by the noble Lord, Lord Renton. As I understand the way Clause 7(1) works, it places a duty on the commission to set priorities in its funding of services as part of the community legal service and it requires the commission to set those priorities in accordance with any directions given by the Lord Chancellor under subsection (4).
There is therefore a duty on the commission to set priorities in the way that the noble and learned Lord, Lord Mackay of Clashfern, identified. It must also set those priorities in accordance with any directions given by the Lord Chancellor. That is perfectly comprehensible and it seems to me to be a sensible way of going about things.
Clause 7(2) states that the commission may fund as part of the community legal service those things which it "considers appropriate", subject to the priorities it has set under Clause 7(1); those priorities having been set in accordance with any directions given by the Lord Chancellor. It seems to be a perfectly comprehensible network of duties. The subsection is saying in effect "You, the commission, have to set your priorities. You have to set them in accordance with any directions given to you by the Lord Chancellor. You then have to spend your money subject to those priorities as you think appropriate". The effect of that is that it provides a discipline and a structure within which the commission can determine its spending priorities. That seems quite sensible.
Lord Renton: Why do you need the words "as part of"?
Lord Falconer of Thoroton: "Fund" as part of the community legal service is a term of art. The community
Lord Renton: Although I have always had an immense respect for the noble and learned Lord, I am sorry to have to say that ever since he became a member of the Government in your Lordships' House I am not in the least bit convinced by the argument he has put forward. I hope that he and the Lord Chancellor will agree that if laymen--and this is the important thing that we have to bear in mind--are to understand this clause, it really must be re-drafted. I beg leave to withdraw my amendment, but I do so in the hope that the noble and learned Lords will think about this much more deeply.
Amendment, by leave, withdrawn.
Lord Archer of Sandwell moved Amendment No. 71:
The noble and learned Lord said: Part of the underlying philosophy of legal services in the Bill is to replace objective entitlements by category with a limited fund distributed in a much more discretionary way and decided according to priorities. There are dangers inherent in that approach. My noble and learned friend the Lord Chancellor clearly recognises them because in his speech to the Bar conference on the 26th September 1996 he said this:
I have sought in this amendment to set out two lists of priorities. Subsection (1)(a) lists according to the subject matter of the dispute; subsection (1)(b) lists according to the other criteria by which we might judge the importance of according assistance. I say at once that I would not go to the stake for my list as against any other possible list. It is not my intention to provoke a debate as to what the priorities should be. What I hope to learn from my noble and learned friend is whether there will be some matters which will be guaranteed even if the fund runs out, similar to the duties imposed on the criminal defence service in Clauses 13 and 14.
Perhaps I may return to a matter on which we touched in an earlier debate. In Clause 7(4), the commission is empowered to distinguish not only between different descriptions of cases but between different geographical areas. That is obviously a wise provision and it must be envisaged that the commission will examine localities to judge their needs. In fact, we heard a little from my noble and learned friend Lord Falconer about how the Government are proposing to approach that matter, although I must confess that I do not yet have it crystal clear in my mind. I wonder whether my noble and learned friend can tell us more about how those needs, when they are identified, will relate to the national system of priorities. Who will decide the priorities for a particular region and within what parameters? Will they be subject to the national priorities or may they, in certain cases, take precedence over them?
I need hardly explain that this is a probing amendment and arises simply from my innate curiosity. I beg to move.
Page 4, line 27, leave out subsection (1).
"as part of the Community Legal Service",
repeated in Clause 7(1), (2), (3), (4) and indeed (5). I think that the Government should invite parliamentary counsel to reconsider the drafting. It reads in a strange way. Clause 7(1) states:
"The Commission shall set priorities in its funding of services as part of the Community Legal Service".
Why should that be done as part of the community legal service? It is as though the whole of the funding of the community legal service will not be covered by that and by the setting of those priorities. I really think that is a strange way to draft subsections (1) and (2) of Clause 7. On that point, the entire drafting of Clause 7 needs to be reconsidered.
9.30 p.m.
Page 4, line 27, after ("shall") insert ("have particular regard to the priorities set out in subsections (1A) and (1B).
(1A) Subject to subsection (5), the Commission shall afford priority to advice and representation in cases concerning--
(a) entitlement to welfare benefits;
(b) any dispute arising out of or in connection with a contract of employment;
(c) homelessness, access to housing, possession proceedings, housing disregard, harassment or unlawful eviction;
(d) the enforcement of judgment debts;
(e) immigration, asylum or nationality; or
(f) such other matters as are specified in regulations.
(1B) Subject to subsection (5), the Commission shall afford priority for advice, assistance and representation in cases--
(a) likely to give rise to substantial benefits for a significant number of people other than the parties;
(b) which raise an important issue of law or point of principle;
(c) concerned with protection from violence;
(d) relating to the welfare of children;
(e) concerning the welfare of a person under a disability;
(f) relating to the care of a child; or
(g) concerning the provision of a child's education, including admission and exclusion proceedings.
(1C) Subject to subsections (1) and (1A), the Commission shall").
"Cost capping, however, is unattractive in principle, because legal aid would cease to be a benefit to which a qualifying individual is entitled. It would become a discretionary benefit, available at bureaucratic disposable, a benefit that would have to be disallowed when the money ran out, or when another category of case was given preference. Legal aid would cease to be a service available on an equal basis nationally, because cases would go forward in one region where identical cases in others, of equal merit, would not".
Notwithstanding those considerations, I appreciate why my noble and learned friend is proposing to move to the new system. But that entails empowering the
commission to set priorities, as we learnt in the previous debate. My noble and learned friend has recognised the importance of those priorities because he has sought to retain a power to give directions about them to the commission. But, first, there is no indication in the Bill as to what those priorities should be; and, secondly, there is no recognition that some needs may be sacrosanct and therefore guaranteed.
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