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Lord Thomas of Gresford: My Lords, the remarks of some noble Lords take me back to my youth when I was a solicitor in a small village in north Wales. We were a five-partner firm, and we endeavoured to provide a service to the community which was a mixture of rural villages and industrial and mining villages. We covered the whole gamut. I was the person in charge of legal aid, and so I was the partner who, I regret to say, made the least money in the whole practice. But if we needed expertise we had the advantage of being able to go to the independent Bar, to the finest minds in the country. I recall that on two occasions I went to my former tutor, who happens to be the noble and learned Lord, Lord Lloyd of Berwick, in commercial cases, and instructed him to advise. It was a rather unusual thing to receive such high quality advice in a rural area such as that.
Looking at these proposals, it seems to me that they will result in the fact that there may be one firm of solicitors--I can think of one firm--in north Wales that could possibly contract in bulk for legal aid work. I cannot think of more than one. That would mean that for a population of getting on for half a million people there would be all the problems of getting through the mountains and valleys of that rather beautiful part of the world to somewhere such as Rhyl or Colwyn Bay in order to obtain the legal services required.
What has happened in the past and what has been the strength of the legal aid system is that expertise and quality have been available to people locally within a few miles. Those firms have not only been able to ensure quality themselves but, as I indicated, they have had access to advice from the best legal brains in the country. These proposals are going to wreck that system and, to my mind, will be detrimental to the rural population.
The Lord Chancellor: My Lords, I hesitate to respond to what has just been said by the noble Lord, Lord Thomas of Gresford, because it is not immediately clear to me how his small firm had peculiarly advantageous access to the noble and learned Lord, Lord Lloyd of Berwick, which would not have been available perhaps, a fortiori, to a larger firm. It is not clear how that contributes to the argument on these amendments.
These two amendments seek to provide a protected position for lawyers providing services within the reformed scheme, while we are addressing purchases of legal services to be made in the public interest. The amendments seek to guarantee work for all lawyers who meet the quality threshold. They also seek to safeguard the market share of this work currently enjoyed by lawyers and to bind the commission to the terms on which it can enter into contracts. They are prescriptive and inflexible; they look backward, not forward. I really do encourage some noble Lords to avoid an occupational resistance to looking forward.
The new scheme is not intended to be a slightly polished-up version of the present scheme, which is a lawyers' scheme built with lawyers in mind. The commission, through the community legal service, will determine the needs of ordinary people who find themselves in difficulty and seek to match those needs within priorities established by the Government or the commission and within the resources that are actually available by securing services from a range of legal service providers.
I find it inconceivable that Parliament would seek to direct in detail the terms under which the National Health Service, for example, should discharge its functions in providing services, or indeed to direct how any part of government should undertake a major procurement exercise. To entrench in legislation detailed provisions about the terms on which services may be purchased by the commission is prescriptive and inflexible. The amendments are, I am afraid, an example of a feather-bedding culture which seeks to protect lawyers from the possibility of having to compete in order to retain work funded--
Lord Archer of Sandwell: My Lords, will my noble and learned friend--
The Lord Chancellor: --by the state. This culture must change. I will give way when I choose to give way.
Lord Archer of Sandwell: My Lords, I was not expecting my noble and learned friend to give way
before he chose. However, knowing him, I was sure that he would be courteous enough to choose to do so before very long and I am most grateful to him.Some of us are becoming slightly worried that every proposal that has been made during the course of today's debate has been met by the answer that the lawyers are ganging up to feather-bed their own concerns. I make no declaration of interest as I have no interest at all in any firm of solicitors. My concern is purely the people of the areas to which I referred who should have access to justice. I believe that that is true of the other noble Lords who have spoken. I fully follow my noble and learned friend's arguments, and he is entitled to deploy them, but it is less than fair to suggest that anyone who disagrees with him does so because this is a trade union ganging up.
The Lord Chancellor: My Lords, I am happy to acquit the noble and learned Lord, Lord Archer of Sandwell, of bad motives. However, I believe his arguments to be fundamentally wrong, and I shall endeavour to persuade him.
Essentially, both these amendments seek to preserve for the profession, subject to its members meeting quality standards, the right to do as much or as little legal aid work as they wish and, in the case of the proposed new clause, to preserve the market share that lawyers currently have of that work. We have heard it claimed, both in Committee and again today, that by giving guarantees of this kind it will be possible to ensure the widest choice for those seeking access to justice.
I accept that that is what the noble and learned Lord, Lord Archer of Sandwell, conscientiously believes. However, I believe him to be fundamentally wrong. I have noticed in the debates on this Bill that providing the greatest choice of lawyer is often regarded as central to providing access to justice. That is a lawyer's perspective. I have, I am afraid, an uncomfortable truth to reveal. The access that the disadvantaged require is not access to traditional lawyers; it is access to justice. Access to justice may not require the services of a lawyer at all.
The services provided through the community legal service, including the services of the lawyers, are no more than the conduits through which disadvantaged people gain access to justice. That is why the community legal service as a whole is wider than simply the efforts of the commission using the resources of the community legal service fund. What I want to achieve is public money to buy the right services of the right quality at the right price to allow the disadvantaged to resolve disputes, enforce their rights or seek the protection of the courts, where appropriate, particularly in areas of unmet need. That requires a radical departure from the current ways of providing publicly funded help with legal problems.
Granting a guarantee of contracts to all firms who obtain a franchise would reduce the commission's ability to direct funding to the needs and priorities identified by communities. This goes rank counter to the fundamental purpose of the community legal service.
I am also keen, and make no apology for it, that in the longer term selective contracting should allow us to introduce an element of competition. Competition is not inconsistent with the maintenance of quality. On the contrary, I believe that the spur of competition offers the prospect of increased quality and cost effectiveness of legal services. I want to ensure that taxpayers' money is used to its best effect, and that requires a change to the funding system.
However, giving guarantees of the kind suggested which provides across-the-board contracts to all providers would effectively maintain the present system. I want a commission that will be proactive in meeting local needs and priorities by purchasing the best and most effective legal services it can find to match the needs of communities.
I remain confident that enough contracts will be entered into to give good access to the public. Contracts have already been guaranteed to all those who obtain franchises in the mental health, immigration and family categories. On the current application rate, it would not be unrealistic to estimate that family contracts would be awarded to between 5,000 and 6,000 firms. That would cover about 96 per cent. of current family legal aid spend, with most firms doing a volume of work similar to their current caseload.
The position in regard to non-family advice and assistance will be clearer in the near future. But the figure of 3,200 contracts, widely cited recently, was not a target. It is in fact the Legal Aid Board's assumption about the number of contracts that would result from the contracting process. That was a number which it believed would be sufficient to provide reasonable access.
Looking ahead, contracting for non-family civil litigation work, currently certificated work, is timetabled for introduction in April 2001. We are still at the planning stage, but in the first round of contracting I would again expect all franchised firms who want a contract to receive one. Our current expectation would be the same for contracts for criminal work and we may even initially grant contracts to firms who meet standards other than those set for a franchise.
It is of course also the case that access can be ensured through requirements in contracts for service providers to go to the clients and through good publicity about where help can be obtained. The recent introduction of limited choice of representation in clinical negligence cases is a first class example.
The Legal Aid Board has established a panel of lawyers who may take these cases on behalf of assisted persons. I should like to make quite clear that any plaintiff who is the victim of clinical negligence, with all of the personal tragedies that that involves, is much better off with a limited choice going to a quality-assured practitioner than, as today, going through the door of any solicitor who, regardless of expertise, is entitled to take his case from beginning to end. These firms have produced publicity material to be distributed to advice agencies. It contains a freephone number so that people who need lawyers can telephone the board and be told where the nearest lawyer with the
requisite skill and experience is situated. The contracts issued to those lawyers on the panel require that if necessary they must visit the clients if that is the only way that access can be provided.We seek to make important changes at a pace that allows the profession to adapt, but it must stop looking backwards and start looking forwards. We are not talking about a big bang; ours is a cautious step-by-step approach. The first stage that is underway is effectively to issue licences to quality suppliers to carry out legal aid work. In some areas such as family work this has meant a guarantee for all those who hold a franchise. But we shall adopt a careful approach, possibly by means of pilot exercises, to introduce an element of competition--yes, competition.
I turn to Amendment No. 57, in particular subsection (2)(a):
- "the Commission shall contract with every supplier who meets prescribed quality criteria and who wishes to provide services under the Community Legal Service".
What is that? It is a prescriptive obligation to contract with a provider. That is something that no other purchaser of services is obliged to do. Let us consider (b):
"the Commission shall offer each contractor a contract for at least the same number of cases as they undertook in the year preceding the year of contracts".
That is guaranteed work for lawyers. The future must be no less than equal to the past. What grotesque rigidity! We come to (c):
"where the total number of cases to be funded in any category of work in a particular region is to be reduced below the number undertaken in the previous year, the Commission may make proportionate reductions in the number of cases to be funded by each contractor in the region concerned".
That is the right to a rigid, bureaucratic, proportionate reduction in work if there is an overall reduction. Under (d) it is proposed that,
"the Commission shall not set a minimal level for the number of cases for which it is willing to contract".
What does that mean? The sky is the limit for any contractor.
- "contracts shall provide for separate payment, in addition to the contract sum, to be paid for disbursements reasonably incurred, and for the costs of advocacy in court".
How prescriptive! That could be appropriate in certain cases but not always, for example if the lawyer were to act as the solicitor and also be the advocate.
- "contracts shall define the number of hours' work, or number of cases, to be undertaken for the contract sum".
What does that prescribe? It prescribes that an hourly rate is the only acceptable means of remuneration. I stigmatise the whole of the proposed amendment as amounting to an uncommercial rigidity statutorily imposed on the purchaser of legal services when those purchases should be made in the public interest.
9.45 p.m.
Lord Phillips of Sudbury: My Lords, I am sure we listened with a combination of emotions to the comments of the noble and learned Lord the Lord Chancellor. His extreme remarks were devoted exclusively to Amendment No. 57. Not one of his comments was devoted to Amendment No. 44 which I moved. I venture to suggest that none of his strictures could fairly be applied to Amendment No. 44.
We have spent 43 minutes debating the amendments. It would be wrong for me to labour what I believe deserves belabouring. I shall resist the jibes levelled several times by the noble and learned Lord at these Benches in particular. I defer to no man or woman in this House, least of all to him, in terms of my record vis-a-vis upholding or extending the effectiveness of legal aid. I was the first chair and co-founder in 1971 of the Legal Action Group, continuing with the founding of Lawyers in the Community Scheme and now the Citizenship Foundation.
In a serious debate such as this, it is unhelpful to slide off the point with a slur. I suspect and hope that the noble and learned Lord did not mean it too seriously. However, he did not address the main issues which I put to him in the debate. Not one single point made by the noble and learned Lord addressed cost, quality or access. To talk about a feather-bedding culture betrays a lack of awareness of what life is like on the legal aid frontline. If noble Lords think that that is a feather-bedded culture they must have been a long time away from such work.
To state that we on these Benches have an occupational resistance to looking forward is unfair. We say that the map devised by the noble and learned Lord the Lord Chancellor, his colleagues and the Legal Aid Board for their brave march into the new world is unsafe. Its destination will not be reached if a method of financing is pursued which will diminish rather than increase choice. For the arguments reasonably given, we believe that it will diminish choice.
Enough has been said. At this time of night there is no point in seeking a Division. However, I reserve the right to bring back the matter at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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