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Lord Goodhart had given notice of his intention to move Amendment No. 80:

Page 4, line 40, after ("bodies") insert ("(which may include non-profit-making bodies maintaining a contingency legal aid fund or similar arrangement)").

The noble Lord said: This is really an amendment on which to hang the peg of the discussion of the conditional legal aid fund. I would prefer to hold my fire until we reach Amendment No. 143 which deals with this matter at much greater length. We shall not reach that amendment tonight. Therefore I shall not move this amendment.

[Amendment No. 80 not moved.]

Lord Kingsland moved Amendment No. 81:

Page 5, line 3, at end insert (", or
(h) making payments to persons or bodies in respect of advice or assistance by them, according to independently verifiable criteria defined within a graduated fee scheme.").

The noble Lord said: This is in the nature of a probing amendment to seek the view of the noble and learned Lord the Lord Chancellor on a graduated fee scheme in the civil theatre--we already have a graduated fee

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scheme in criminal cases--and to what extent, if that were instituted, it would be respected by the legal services commission. I beg to move.

Lord Falconer of Thoroton: Amendment No. 81 is linked to Amendment No. 159. I shall deal with both amendments together. The purpose of both these amendments is to add to Clauses 7(3) and 13(2) a similar requirement; namely, to provide for the making of,

    "payments to persons or bodies in respect of advice or assistance by them, according to independently verifiable criteria defined within a graduated fee scheme".

These amendments are unnecessary and unacceptable. Clause 7(3)(b) and Clause 13(2)(b) already provide adequate powers to the commission to fund services by payments to bodies and individuals. The mechanism for doing so must be a matter for the commission and not something that needs to be set out in statute. Moreover, the particular mechanism is one used almost exclusively by the Bar. As the noble and learned Lord the Lord Chancellor has already said in reply to an earlier amendment of the noble Lord, Lord Kingsland, the Bar ought to have nothing to fear from the reforms that he plans. It should be looking towards organising itself to make the most of the opportunities that the reforms offer it and not seeking to entrench for all time the current practices, which may not necessarily be in the best interests of the Bar. In those circumstances, I would respectfully ask the noble Lord to withdraw his amendment.

Lord Kingsland: In view of the tone in which the noble and learned Lord responded to my amendment, I can see that I am not going to make any progress on it tonight. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Chairman of Committees (Lord Boston of Faversham): I must point out to the Committee that if Amendment No. 82 is agreed to I cannot call Amendments Nos. 83 to 86 inclusive.

[Amendments Nos. 82 and 83 not moved.]

Lord Mackay of Clashfern moved Amendment No. 84:

Page 5, line 6, leave out ("areas") and insert ("communities").

The noble and learned Lord said: I mentioned at Second Reading that the word "community" appears in the description of the community legal service but, as far as I have been able to ascertain--and someone may be able to correct me--it does not appear anywhere else. On looking over the provisions of the Bill it occurred to me that we ought to get in the idea of local community. We are not talking about the community legal service as equivalent to the civil and family legal services. We are trying to get to the idea of a service based upon, and using what has been developed within, communities; to build on that, and to provide a really effective system throughout England and Wales.

On looking through the Bill, it occurred to me that although subsection (4) of Clause 7 uses a very usual formula in different areas of England and Wales as the

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power to make different provisions for different places, it would be quite a neat place in which to put in the word "communities" instead of "areas". That would give the community legal service a kind of local community connection. It would not do any harm. The word "communities" is at least as definite as the singular "community" and therefore there is no ambiguity. I beg to move.

The Lord Chancellor: I am minded to consider favourably the suggestion of the noble and learned Lord. It could achieve greater flexibility as it might allow the commission to target non-geographical communities such as ethnic communities. As the noble and learned Lord points out, the word "community" lives happily with a community legal service. Perhaps the wording could refer to areas or communities. I shall reflect on that. On the basis that I will consider the matter favourably, I invite the noble and learned Lord to withdraw his amendment.

Lord Mackay of Clashfern: I am extremely happy to withdraw my amendment. I am content that the noble and learned Lord may weave the idea of local communities into a better formula. It is quite important that there is a connection between the community legal service and what we understand as communities--be they ethnic, geographical or other types. That should be achieved if possible. I am very grateful to the noble and learned Lord for his kind consideration of my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 85 not moved.]

Lord Archer of Sandwell moved Amendment No. 86:

Page 5, line 10, at beginning insert ("Subject to subsection (6A) below,").

The noble and learned Lord said: It may be to your Lordships' advantage to discuss Amendments Nos. 87, 88, 89, 97 and 98 with this amendment. Of those, Amendment No. 86 is a paving amendment to Amendment No. 88, and Amendment No. 98 is an example of the application of Amendment No. 88.

I hope that it is an omen that this amendment has been called at a time when my noble and learned friend is obviously receptive to suggestions. Certainly you cannot be hurt for hoping.

One important purpose of the Bill is to ensure if possible that legal aid is directed to those purposes for which it is most needed. Sadly, but inevitably, one implication of that is that it is directed away from purposes for which it is not so necessary because other forms of provision exist. I have no quarrel with that and I accept that that is what my noble and learned friend is seeking to do in Schedule 2. But I am sure he would agree that, if one proposes to cut the lifeline, one needs to be very sure that the oxygen cylinder is firmly in place. Schedule 2 is probably the most dangerous part of the whole Bill, at least in relation to legal service. We must scrutinise it carefully to ensure that nothing is excluded from funding unless there really is alternative provision.

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Paragraph 3(a) of Schedule 2 would exclude all proceedings for negligence other than for clinical negligence. I have no complaint about excluding proceedings for damage to property, but as presently drafted the paragraph would exclude the whole field of personal injury work. This is not the occasion to embark on a discussion of what proportion of public resources are consumed by this subject--a large percentage of costs are recovered from defendants--and I hope we do not muddy the waters with that dispute. For this purpose, I am happy to assume that it would represent a significant saving. It is arguable that if an effective alternative exists, those outgoings should be saved. However, if no such alternative exists, this call on public funding certainly should not be excluded. That is the purpose of my amendments.

I am conscious that there is no unanimity even about that combined proposition. As I understand it, the noble Lord, Lord Kingsland, in his amendments in this group, would go further than that. I think I understand the reasons for that. Even the Bar Council, to which we are all indebted for so much very wise and careful advice in the course of these debates, was considering at one stage making that concession. I understand that it now believes that that would be going too far as there may always be some need for advice and assistance in personal injury cases, but no doubt this is an ongoing discussion.

As I understand it, the Government's argument is that there is an effective alternative in the form of conditional fees. I am aware of the arguments of principle against conditional fees. I agree that the new system carries dangers. That is not the point of this amendment. If I could be assured that anyone with a reasonable claim to compensation for personal injury would have adequate access to advice, assistance and representation, I would not wish now to persevere with this amendment. But conditional fees are at an early stage in their life.

There are, of course, some statistics on this. I must confess that I have always mistrusted statistics since I saw a document headed "The House of Lords broken down by age and sex". But we have seen the statistics. We have also seen a plethora of anecdotal evidence, one way or the other, as to how necessary it is to find a firm of solicitors prepared to undertake a claim for personal injury when, as my noble friend Lord Clinton-Davis and the noble Lord, Lord Phillips, reminded us at Second Reading, the evidence may be complicated, the outlay on experts' fees substantial, the client less than articulate, taking instructions' protracted exercise, and on which there may be discussions as to the level of mark-up required. Similarly, we have heard disturbing murmurings about the reluctance of some insurers to provide insurance for certain categories of situation. This amendment is simply an invitation to your Lordships to consider whether withdrawing the ladder may be premature unless we can be satisfied that the rope is firmly in place.

I am grateful to the Legal Action Group for pointing out that in the funding code the question is approached from a rather different angle from how it is in the Bill. Paragraph 2.6 states that the commission should satisfy

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itself in each case that conditional fees are a viable alternative before funding for a particular purpose is withdrawn. The effect of sub-paragraph (b) of my amendment would be precisely that. It is not what the Bill now provides. I hope that my noble and learned friends will agree that there is at least a substantial reason for anxiety about this matter. I beg to move.

10.45 p.m.

Lord Goodhart: I have put my name to a series of other amendments in this group, Amendments Nos. 87, 89, 97 and 98. I warmly endorse all the remarks of the noble and learned Lord, Lord Archer of Sandwell.

Conditional fee agreements (CFAs) have made a reasonably encouraging start in road accident cases. Such cases are very much a category of their own. They have a number of special features. First, it is almost always clear that someone is at fault. In many cases of personal injury that is the problem, because one starts by having to find out whether there was any fault at all. Secondly, in motor accident cases involving personal injury there is the advantage of the police investigation, which will probably have established exactly who is at fault and the nature of the fault.

That being so, it is obvious that the problems with personal injury cases arising out of road accidents are much easier to solve than other personal injury cases. It is therefore much easier to find a solicitor who is willing to enter into a CFA; and one is looking not only at the CFA but also the availability of insurance which the plaintiff must have in order to cover the risk of being ordered to pay the costs of the other parties.

In other kinds of case the availability of CFAs is far from proven. There are reports of considerable difficulties in obtaining after-the-event insurance for cases of that kind. One can imagine personal injury cases of considerable complexity. There is an exception for medical negligence cases, but that is far from being the only case in which there may be very complicated issues of causation.

Let us take a simple example. Most of us remember, a few years ago, the collapse of the tower block at Ronan Point. Someone injured in that collapse--as might be the case in some similar event in the future--might well have had enormous difficulty and a great deal of investigation might have been required to find out who was at fault, what the nature of the fault was, and who was the right person to sue. In cases of that kind it is hardly conceivable that one will be able to obtain viable levels of insurance.

Surely the situation here is that for the time being the Government should adopt the other position and say that personal injury cases remain available for public funding; they are not included in Schedule 2. The legal services commission will rightly have to bear in mind that it will not be expected to fund cases where CFAs are reasonably available. That is clearly within the spirit and intention of the legislation. I am saying that if all personal injury cases except cases of clinical negligence are excluded, there is a real risk that people who have suffered serious, possibly catastrophic injuries from

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non-road cases may simply not find themselves with the possibility of going to law to obtain the damages to which they are entitled. There is a serious risk of that happening.

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