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Lord Goodhart: My Lords, the regulations, and even more the funding code, implement the policy behind the Access to Justice Act. That policy includes a shift of negligence claims almost entirely to conditional fund agreements and involves the cash limiting of civil legal aid.
In the debates on the Access to Justice Bill, we expressed concern on both those issues. We were doubtful whether CFAs will prove as useful as the noble and learned Lord the Lord Chancellor believes. We reluctantly accept the principle of cash limiting but we fear that one result will be a real reduction in funding for civil legal aid, while the uncapped funding for criminal legal aid increases. However, that policy has been decided and it is not appropriate to debate those issues again today.
I should like to start a more detailed study of the code by stating that it seems to me to be extremely well drafted. I am someone who knows professionally a good deal about draftsmanship. It is clear, well laid out and, given the complexity of the subject matter, easy to understand. There are, however, a number of points I should like to raise.
The Law Society is particularly concerned about the timescale involved. The code is not only a lengthy document, but is accompanied by some 290 pages of guidance. The guidance, as I understand it, has had to
Even starting from now, four weeks is not enough time to enable solicitor firms to train their staff and partners on the operation of a code which comes into force on 1st April. We believe that it would have been better to leave it for a few months longer, rather than to bring it into effect in an enormous rush.
I also have some criticism of the contents. Section 2.3 assumes that prospects of success can be forecast in a mechanistic way which can be expressed in an accurate percentage. Anybody with experience of practice will know that it is impossible to be anything like that precise. There is also an ambiguity in the text. For example, what is said to be a good prospect is a 60 to 80 per cent chance of success; a moderate prospect, 50 to 60 per cent. If the chance is estimated at 60 per cent, is it good or moderate? I believe that the code should say that "good" means at least 60 per cent but less than 80 per cent, and "moderate" means at least 50 per cent but less than 60 per cent.
Perhaps more seriously, there are problems with the fluctuations in prospects. Prospects, as seen by a client's lawyer, constantly alter throughout the run-up to a hearing. Documents may be disclosed on discovery which are either helpful or the opposite. New evidence may be obtained on behalf of one side or the other. What happens if, as a result of such fluctuations the prospect is downgraded from, let us say, very good to good and the case then ceases to meet the cost-benefit criteria in section 5.7.3? Will the funding then be withdrawn under section 14.2, even though the chances are still good? If section 14.2 is permissive, and that is what it appears to be, on what basis will a decision be made whether to maintain or withdraw funding?
Section 2.4 contains a definition of what constitutes the overwhelming importance of a case to the client, that being a factor in deciding, in a number of cases, whether or not assistance should be granted to the client. "Overwhelming importance", according to section 2.4 is limited to the preservation of life, liberty or physical safety or to preventing the loss of housing. But what about the loss of livelihood? Let us suppose that a teacher wants to challenge, by judicial review, a decision to put him or her on the list of those who are not allowed to work in schools. Is not that as important as housing? I am not referring here to the loss of a particular job, but to the loss of an entire career.
The overwhelming importance to the client is an expression which occurs in many places. Section 5.7.2, for example, states that full representation will be refused if the prospects are borderline, the case does not have significant public interest and is not of overwhelming importance to the client.
I turn to procedure. I have a minor point on Condition 8 which I shall raise simply out of curiosity. It concerns clients who are resident outside the United Kingdom. Section C8.2 states that the applications have to be in English or French. I just ask why French, and, if French, why not German, Dutch and Spanish, and so on?
Finally, section C61, again on procedure, gives power to the funding review committee, on appeal from a decision of the regional director, to reconsider that decision on most issues--for example on the question of the regional director's decision on prospects of success or whether the case is of overwhelming importance to the client--and the funding review committee can substitute its own decision. For some reason, where the issue is whether the case has a wider public interest, the powers of the funding review committee are limited to only judicial review. The committee can alter the decision of the regional director only if that decision is irrational. I wonder why that distinction is drawn.
I apologise for raising a number of detailed points. However, I believe that the code is of great importance. I shall plainly not object to the code on this occasion. However, I believe that it contains difficult issues which may need to be reconsidered, and that such reconsideration may need, in some cases, to be sooner rather than later.
Lord Kingsland: My Lords, like the noble Lord, Lord Goodhart, I do not think it appropriate at this stage to make observations about the principles that lie behind the code. A great deal was said about the principles in the course of the passage of the Access to Justice Act. Those discussions are now over and we must get on with administering the new regime.
However, like the noble Lord, Lord Goodhart, I share a concern about the way in which the code and its guidance are being implemented. As I understand it, although there has been ample consultation on the code itself, the first draft of the guidance came out on 17th December and the procedure for consultation had to be completed by 10th January. Moreover, it is my understanding that the guidance did not, in that first edition, cover the code procedure. If those facts are true, then I suggest to the Minister that the consultation on the guidance at that stage was woefully inadequate. I suggest also to the Minister that the code without the guidance is no guidance at all.
There is now a second edition of the guidance, but it has only just appeared and I understand will not be in hard copy form in the hands of the relevant solicitors until the last few days in March. If the whole system is due to come on stream on 1st April, then I entirely share the concern expressed by the noble Lord, Lord Goodhart, about the unfair effect that that will have on practitioners. In those circumstances I, like the noble Lord, Lord Goodhart, urge the Minister, even at this late stage, to reconsider the timing of the implementation of the code. A further six months would probably be a fair solution.
My second set of observations concerns the budgetary measures that lie behind the code. I also share the concern expressed by the noble Lord, Lord Goodhart, that the introduction of budgetary constraints on legal aid was a bad move by the Government. Is the Minister in a position to tell your Lordships' House whether or not each one of the categories from six to 13 under the code will have its own special budget line? If so, is he also able to tell your Lordships' House what will happen in circumstances where one line runs out? Is there some central reserve which can be called upon or are the cash limits going to be implemented with peremptory severity?
Those questions are important, not only because of the views expressed by the Opposition during the passage of the Act and shared by the noble Lord, Lord Goodhart, but also because of the impact that the European Convention on Human Rights might have on the implementation of the Bill. If these budgetary limits bite too severely and affect cases that would otherwise, on the criteria laid down in the Bill, be meritorious, then I suggest to the Minister that the Government are in danger of transgressing their own legal flagship.
Finally, I have one other point, and I shall express it tersely, in relation to the Community Legal Service (Cost Protection) Regulations 2000. I was disappointed that the Minister and Her Majesty's Government did not take the opportunity, under regulation 5(3)(a) to (d), to make life a bit easier for the non-funded defendant who faces an unmeritorious claim by a funded claimant.
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