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Lord Roper: My Lords, as a member of the Procedure Committee I should like to say how much I support what was said by the noble Lords, Lord Grenfell and Lord Renton of Mount Harry. It seems to me that this is an experiment. We have said that, if we can negotiate satisfactory arrangements with the House of Commons Modernisation Committee, we should like the new committee to sit for a period of two years. It is worth remembering that as the new committee would not meet more than four times a year, that would mean at most eight meetings before we reached a view whether it should continue.
The new committee would be of a quite different character from the sub-committees of both Houses that meet on a regular weekly basis. The new committee would meet relatively rarely to take evidence or to put questions to, for example, a senior Minister dealing with European matters or a commissioner. Therefore, it would have a different character. It may not provide any added value but, as the noble Lord the Chairman of Committees said in opening the debate, the Procedure Committee felt that we should suck it and see.
Baroness Amos: My Lords, I hope that I can help the House by making a number of matters clear. This is a matter that is entirely for this House to decide. However, I remind the House that my noble friend the Chief Whip and I are constantly asked to ensure that this House is represented along with the other place when committees are proposed. I also remind the House that in the discussion on the Standing Committee on the Intergovernmental Conference in September 2003, concern was expressed by a number of Members of this House that it was not a Joint Committee.
I appreciate the points of detail that were raised this afternoon with respect to the working of any Joint Committee. The only argument at the moment is whether the House of Lords should participate in a Joint Committee, and that is entirely a matter for this House.
On the specific points raised, the proposal is that the committee would debate European issues and have the opportunity to ask questions not only of government Ministers but of European Commissioners. It would not engage in the kind of detailed scrutiny undertaken by committees of this House. In terms of process, the Modernisation Committee in another place is looking at this matter. They have engaged to take the temperature of the Procedure Committees of both Houses, so there is the opportunity for this House to make its views absolutely clear.
I finish by reminding the House that this proposal has already been greeted positively by the European Scrutiny Committee in another place, so some form of
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committee is likely to go ahead. It can do so merely as a Commons committee, if that is what this House wishes.
The Chairman of Committees: My Lords, I shall answer some of those questions posed to me as chairman of the Procedure Committee. I will not go into the merits or otherwise of this European Joint Committee. That is not my affair and has been well debated. In passing, I was armed to answer questions on the other three or four recommendations in the committee's report. I am most disappointed that nobody has asked me any questions on them.
I apologise to the noble Lord, Lord Grenfell, that we were not able to find a mutually convenient date for him and the Procedure Committee to meet. We did our best, but there was great difficulty in the timing. We wanted to have our recommendations out in time for them to be considered—and, I hope, agreed to—by the House of Commons Modernisation Committee. We probably made an error in not printing the letter from the Leader of the House and the reply from the noble Lord, Lord Grenfell, as an annexe to the Procedure Committee report. It might have made a better report if we had done so.
The noble Lord asked for a particular assurance about what would happen next, as did the noble Lord, Lord Tordoff. Obviously, when we see what we can agree with the committee in another place on our recommendations, the Procedure Committee will have to meet again and discuss the details of how this arrangement will work. The Procedure Committee will then have to make a report to this House, as it is doing today. At that moment, as the noble Lord said, this House could throw the whole thing out if it did not like the look of it. That is definitely what would happen.
There is a lot of detail to be worked out regarding the chairmanship of the committee. If it is to be mainly a debating chamber, one of the panels of deputy chairmen from either House could take the chair. As the noble Lord, Lord Grenfell, said, that leaves the important question of who would set the agenda, which needs to be settled.
The last assurance for which the noble Lord, Lord Grenfell, asked was whether we could put into the Standing Orders of the committee the fact that it would not trespass on the work of the main European Union Committee of this House. I am very keen that it should not do so. We would do our very best to implement that suggestion.
I hope I have answered the questions asked of me as chairman of the Procedure Committee, and I leave it at that. Let us see what the noble Lord, Lord Marlesford, wishes to do.
Lord Marlesford: My Lords, I have obviously listened very carefully to everything that has been said. I started by saying that I was not necessarily opposed to such a new committee, but that it was unclear what it was for and whether it would add value. I am very glad that almost every Member who has spoken has echoed those sentiments. The Chairman of Committees has effectively
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indicated that the further consideration of the Procedure Committee will be the equivalent of a referral back. We have the assurance that if the later consideration with detail—when we are told what it is actually for and how it will work—proves unsatisfactory, we will able to reject it.
In that context, I am perfectly happy for the Procedure Committee to give further thought to it, along the lines of the undertaking given. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Motion agreed to.
Gambling (Regional Casinos)
The Chairman of Committees: My Lords, I beg to move the second Motion standing in my name on the Order Paper.
Moved, That it is expedient that a Joint Committee of Lords and Commons be appointed to consider and report on the Government's response to Recommendations 79, 80, 81, 83, 84 and 85 of the report of the Joint Committee on the draft Gambling Bill (Cm. 6253), which focus upon the definition, location and economic and other implications of the largest casinos; and the further statement of government policy on casinos published with Cm. 6253;
That a committee of eight Lords be appointed to join with a committee appointed by the Commons for this purpose;
That, as proposed by the Committee of Selection, the Lords following be named of the committee:
L. Brooke of Sutton Mandeville, L. Donoughue, V. Falkland, L. Faulkner of Worcester, B. Golding, L. Mancroft, L. Wade of Chorlton, L. Walpole;
That the committee have power to agree with the Commons in the appointment of a chairman;
That the committee have leave to report from time to time;
That the committee have power to appoint specialist advisers;
That the committee have power to adjourn from place to place within the United Kingdom;
That the reports of the committee from time to time shall be printed, notwithstanding any adjournment of the House;
And that the committee do report by 22 July 2004.—(The Chairman of Committees.)
On Question, Motion agreed to; and a message was ordered to be sent to the Commons to acquaint them therewith.
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Access to Justice
Lord Phillips of Sudbury rose to call attention to matters which may inhibit access to justice; and to move for Papers.
The noble Lord said: My Lords, legal aid has been a prevailing passion of my legal life. I was co-founder and first chairman of the Legal Action Group in 1972, did legal aid work from the start of my career, and my firm only ceased to do it in May of this year for reasons that I shall highlight later.
One of the most telling marks of a good society is the way in which it treats those without the wherewithal to maintain their legal rights. One of the landmarks of the post-war Labour government was the Legal Aid Act, which gave 80 per cent of households access to legal aid. That proportion was still 70 per cent in 1979, and now probably languishes somewhere around 40 per cent.
The subject of the debate is not, however, confined to legal aid. It is drawn so as to provide a wide canvas for contributions of noble Lords. Access to justice is significantly related, for example, to the 12,000 to 13,000 pages of new laws which we pour out from this House and the other place every year. This output is simply indigestible and overwhelming. It turns citizens into subjects. It is also one reason why the cost of legal aid overall, and per case, rises, particularly in the criminal sphere: from £1.5 billion in 1997 to £2 billion now. For example, this Government have created over 600 new criminal offences since they came to power, and have just announced a policy to encourage nearly 20 per cent more prosecutions. Those policies and these laws have a direct impact on legal aid.
Another inhibition on the access to effective justice is the continuing breakdown in community cohesion. That is why recent legislation, centralising the administration of the courts system and reducing the ability of justices of the peace to run their own show, is counter-productive. It means the continuing closure of local courts, which directly diminishes geographical access and local ownership of the courts, and causes loss of local knowledge by the Benches.
When I first entered the House six years ago, I was confronted with the Access to Justice Bill, championed by the then Lord Chancellor, the noble and learned Lord, Lord Irvine, assisted by the present Lord Chancellor, the noble and learned Lord, Lord Falconer. So much of the long and hard-fought debates was a form of shadow boxing, with Ministers who had little or no first-hand experience of legal aid, advised by a huge team of civil servants, none of whom, I ascertained, had any such experience. They argued from principle and theory, as I saw it, with many of the rest of us endeavouring to argue from unaccommodating reality. That their intentions were admirable, there is no doubt. That there were serious problems with legal aid also is undeniable, particularly the escalation in cost. In what follows I do not want to belittle the continuing difficulties let alone crow, "I told you so" in relation to those debates, although I certainly could.
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As there is sharp disagreement about the current state of access to justice, I shall seek primarily to analyse the real position, although in doing so I will of course point the way to improvements.
We accept that the cost of improved legal services has to come from somewhere and that it will invariably compete with other pressing needs. It also has never been part of my approach to claim universal competence for my profession. Any scheme has to deal with defects. But somewhere along the line the combination of too little first-hand management, dirigiste managerialism plus an excess of bureaucratic interference have brought us to the present pass.
That in short is a legal aid scheme, or community legal service, where demoralisation among solicitors and other legal advisers who serve it is now very general; where the provision of legal advice and assistance is very patchy and the talk is of deserts; where the eligibility criteria for help are too stringent; and where the whole scheme is dominated by criminal legal aid to the detriment of the civil sphere.
Perhaps I may give a few statistics which are relevant to the debate. I have already mentioned the growth in the legal aid budget over those seven years. However, in view of the massive increase in laws, crimes and the rest of it, the £1.5 billion to £2 billion might be thought not enough let alone too much. Some £1.1 billion of the £2 billion is spent on the criminal legal aid budget, leaving less than £900 million for the civil budget. That budget is split 93:7 between solicitors in private practice and not-for-profit entities. One million people were helped last year by legal aid, compared with 3.5 million in 1997, when the green form advice scheme was still available. The number of civil cases is 8 per cent down; criminal cases, 18 per cent up. The cost per civil case is 3.4 per cent up; per criminal Crown Court case, 9 per cent up. In 1990, 30 per cent of solicitors' income derived from legal aid. That figure is now down to 13 per cent and falling.
The other point that I would briefly mention is that there are 70,000 solicitors in private practice today, 85 per cent of them in firms of four partners or fewer, comprising more than 9,000 firms and nearly 13,000 offices. The budget for legal aid is about 5 per cent of the budget for the National Health Service.
I turn briefly to the very recent independent review—published on 1 April—of the Community Legal Service, commissioned by the DCA and done by Matrix/Sheffield University and Richard Moorhead. To be fair, they said they were "impressed with progress made" in establishing and developing the Community Legal Service. However, they pointed to five areas where improvement is badly needed, one of which was clarification of the aims and strategy of the CLS, particularly in relation to social exclusion. They called for an evidence base for the Legal Services Commission policy on, for example, its selection of not-for-profit providers as compared with private practice providers, and specialist providers as compared with generalist ones.
The reviewers called for much better processes, to which I shall return. They concentrated on quality, which they found severely lacking—an issue to which
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I shall refer later. They then looked at the localised impact of the work of the legal aid scheme and had a lot to say about community legal service partnerships, which are in a bad way.
If there is one problem above all others that needs to be urgently addressed it is that of withdrawal of solicitors from the Community Legal Service. As I have explained, they are the predominant suppliers. As of 1 April, according to the independent review, there had been an 18 per cent drop in the number of contracts awarded under the Community Legal Service since the first award three years ago. In the latest tendering round there was a 10 per cent reduction in the number of contractors applying for contracts. Although the Legal Services Commission states that it will be able to find suppliers for all the contracts it needs, the fact remains, as Keith Vaz MP put it to the Constitutional Affairs Committee on 24 February:
"We have a legal aid crisis . . . solicitors are deserting legal aid in droves. It simply does not pay for them".
Mr Vaz was, of course, involved in the Access to Justice Bill as a Minister.
A very telling section in the forceful written evidence by the Law Society to the same committee, which is inquiring into legal aid and will shortly publish, I believe, was this:
"There has been a marked decline in the morale of legal aid providers. In 2003 the Society embarked on a nationwide consultation . . . to hear directly from legal aid practitioners about their assessment of problems on the ground and their ideas for an improved system. What emerged was a picture of great dissatisfaction with the way the system was operating. The predominant feeling was that the Government was running the legal aid system into the ground and legal aid practitioners expressed great doubts about being able to continue to provide a service for their clients".
The society concluded by saying,
"on current trends the prospects for the future of publicly funded legal services are bleak. Those providing legal aid are a comparatively elderly cohort of the profession. The enormous gulf in earnings prospects between those in commercial firms and those in publicly funded work means that despite their social conscience few newly qualified solicitors feel able to pursue a career in legal aid firms or the not for profit sector".
The earnings differential is 100 per cent to 200 per cent and in some cases 300 per cent.
From its research this year the Law Society found, and I can vouch for this, that about half of all trainees would like to expect to do legal aid, along with non-legal aid work, but only about one in 12 is likely to do so. Few legal aid firms are even able to afford trainees at all, and the system is dying at the roots. The brutal fact is that with legal aid rates frozen for so long, against a backdrop of the costs of running a legal practice running ahead of general inflation, the viability of doing legal aid continues to be undermined and destroys the goodwill of solicitors.
The Government should not pretend that the practitioners who have left legal aid can be easily tempted back or that the gap can be adequately made up either by technological novelties, supermarket methods or—the greatest and fondest hope—by putting ever more burden on the not-for-profit sector.
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That was the hope of the 1970s, yet today there are fewer than 100 law centres, wonderful though they are, and even the 1,000 or so citizens advice bureaux cannot match the 12,700 solicitors' practices. Moreover, the CABs will soon tell you that their effectiveness depends partly on partnership with their local practitioners from whom they can get pro bono help and to whom they can refer difficult cases.
So as the CAB and the Law Society's recent evidence manifestly shows, growing deserts of legal aid availability now exist. Ross Cranston MP QC, former Solicitor-General, gave evidence to that effect before the Constitutional Affairs Committee, making the point that,
The independent review said that the,
The detailed work by the Law Society and CAB makes that abundantly clear.
I should like to say a quick word about telephonic advice, as a great deal of hope is put upon the shoulders of that type of advice. For 10 years I was a non-executive director of the second biggest telephone legal advice provider in the country. We employed fleets of law graduates and a few solicitors. However, those services, as admirable and important as they are, and though they serve as entry and initial advice points, are of very limited use, particularly in cases of any complexity or where the client has difficulty in analysing their own problem, let alone communicating it over a telephone.
So of all the things that have been identified by the Law Society, the Legal Aid Practitioners Group, the Legal Action Group, citizens' advice bureaux, the recent independent review and others, as inhibiting access to justice, at the root are two things. The first is levels of eligibility. It is notable that the Legal Services Commission's own research finds that almost 40 per cent of people asked had a serious legal problem where they needed help, but only one out of five of those people received it.
The second is the availability of accessible, appropriate advice. Apart from rates of remuneration, and more important, I suggest, there is the issue of the LSC method of running and auditing its contracting system. I have cited the DCA report, which calls the process,
and have referred to its conclusion about the inadequacy of quality monitoring. When Philip Ely, the chairman of the Legal Services Commission, gave evidence to the Constitutional Affairs Committee, he said:
"The processes in which we are engaged measure process as much as anything. They do not measure quality of advice".
That makes a mockery of the constant assurances that we have had from Ministers, including during the passage of the Access to Justice Bill, that it is quality
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at which all these reforms are aimed. It is rather like marking the performance of the English football team not by the result but by how many shots at goal it had.
The operational comparisons by the LSC of the legal profession with supermarkets and with Nissan plc, which were given as examples by Clare Dodgson, chief executive of the LSC, to the Constitutional Affairs Committee, does not warm the hearts of the legal profession.
To summarise, eligibility must be grappled with. If we purport to have equality before the law and a national advice service, we must live up to it and provide the wherewithal. Remuneration must be the subject of an independent review board. Paperwork must be slashed. Quality must be assured not by a paper chase but by peer review. We must ring-fence civil legal aid. We must ration not by case starts but by criteria governing the scope of and eligibility for legal aid. We must restore local justice. We must maintain innovation—as I readily accept that the LSC has done—and we must accept, above and beyond all else, that the legal aid scheme and the money put into it is an investment in the fairness, justice and effectiveness of our society and that money spent in that direction can prevent a great deal more expenditure further down the line. I beg to move for Papers.
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