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The Government have asserted that there was a significant rise in the costs of the family graduated fees scheme. Paragraph 7.12 of the Explanatory Memorandum to the statutory instrument states,
- "legal aid payments to family barristers have risen unsustainably over the five years from 2003-04 to 2007-08".
That seems a considerable exaggeration. I will give your Lordships the figures in a moment. The Merits Committee questioned the ministry about the statutory instrument and the lack of an impact assessment attached to the Explanatory Memorandum. We were told that family barrister fees were nearly £100 million. The Family Law Bar Association answered the Government figures and stated that the £100 million includes non-FGFS payments, such as payments in the magistrates' courts and other payments that are not to be treated as part of the FGFS. The Government have taken into account the 8 per cent that they over-deducted in 2001 and put back in 2005. In addition, there has been an increase in the volume of cases. For example, everyone knows from the press how many additional cases have come in to the care side of the courts because of Baby Peter. In fact, the FGFS costs have been pretty well controlled, and the Justice Committee quoted from the Legal Services Commission report the following figures. In 2005, the cost was £90.6 million. It was revised by the Ministry of Justice on 26 May 2009 to £88.5 million. For 2006, £94.1 million was revised to £90.4 million, and for 2007, £98.2 million-getting rather close to the £100 million-was revised down to £89.9 million. So these figures, showing an unsustainable increase, may be for overall legal aid, but not for this particular set of barristers' fees.
The Merits Committee put into paragraph 10 of its 25th report a previous Justice Committee report, which had said in 2006, I think:
"More reform is inevitable. However, the consistent message from evidence received on legal aid reform is that the Commission is proceeding at speed with inconsistent data, a weak evidence-base and a poor understanding of the shape, the cost drivers, other motivating factors, and the structure of its supplier market. In addition, as Lord Carter himself emphasised strongly, this fundamental reform of legal aid provision-for 60 years the pride of the justice system in this country-requires the cooperation of those who deliver the services".
"In the light of these comments the House may wish to seek further information from the MoJ on the robustness of the assumptions that underpin the current Order"-
that is, the one before this Committee-
- "both in terms of likely savings and the profession's willingness to deliver a service under its terms".
That is why I have put this Motion to consider before the Committee.
The Justice Committee's report pointed out, therefore, that there is quite a history to the Legal Services Commission dealing with stakeholders and with
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This Justice Committee said that there were obvious flaws in the evidence of the Legal Services Commission that,
and that the Legal Services Commission had,
The Justice Committee also dealt with the implications of the proposals. Perhaps I may give just one example: a case before Mrs Justice Hogg, with four Lever Arch files of 1,200 pages, 29 hours of pre-trial preparation, four days in court and 66 hours as expended by the parents' advocate. If it had been a private client case, it would have been worth about £9,900. Under the existing legal aid scheme, prior to August of this year, it would have been worth £4,875.25. Under the new legal services scheme, all that work will be worth £1,909. The Justice Committee,
It also set out in considerable detail at paragraph 47 of its report what had been said by my successor as the president of the Family Division and stated that it agreed with it. It then put into its conclusion at paragraph 51 what Sir Mark Potter recently said, which neatly encapsulates the points:
"It is no function of mine as Head of Family Justice, to participate in negotiations between government and the professions as to the terms of their remuneration. However, it emphatically is my concern as Head of Family Justice to bring forcibly to the attention of the government the threat to the efficient working of the system in terms of both efficiency and delay if the LSC proceeds regardless of the warnings of the profession and, in particular if those specialising in children cases abandon or cherry pick publicly funded work. Quite apart from the strain upon family judges and the courts' administration by HMCS, there will be significant further delays in the court process caused by inexperienced advocates undertaking more complex work; longer and less focussed hearings; a higher incidence of litigants in person and a greater likelihood of appeals where cases become derailed because of inadequate representation at first instance".
We are talking of course about members of the public caught up in child and other family cases-some of the most vulnerable people. I do not want to take any more time, so I shall not deal with the effect on the various groups of people, which will be obvious to your Lordships.
There is also the impact on the Bench. Many judges at district, circuit and High Court level are appointed from the family Bar. In future, there will be a lack of family practitioners to go on the Bench, which will have an adverse effect on judicial diversity. Almost half the judges of the High Court Family Division are women; it is the only division in which you have that large number, because they are family practitioners. Will they be there in five or 10 years' time?
On 21 October, the Minister gave his decision and consultation response, although that was after the statutory instrument to which I refer. It made some minor improvements in public law work but none in private law or financial cases. The Family Law Bar Association has regretted the lack of further consultation
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6 pm
Lord Lester of Herne Hill: My Lords, I am sure that the noble and learned Baroness, Lady Butler-Sloss, does not need to apologise for the detailed way in which she introduced her Motion and gave us a chance to have this debate. We should all be grateful for it because she has raised extremely important points. It will not surprise anyone to know that I am not a shop steward speaking on behalf of the family law Bar because I am not a family law practitioner. My interest in the subject, as the Minister's advisers will know, is in the work that I did with them on the Forced Marriage (Civil Protection) Bill, which, thanks to them and Ministers, became fit for legislation and is now part of the law.
The points that I want to raise are ones for which I am indebted to a very eminent and well qualified family law practitioner-namely, Khatun Sapnara, who helped very much in preparing the Forced Marriage (Civil Protection) Bill and has enormous experience dealing with domestic violence and forced marriage issues. I have skimmed the 106-page impact assessment, the 71-page consultation document and the statistics to support the Government's analysis, so I think that I understand what I am about to say. However, I shall no doubt be proved wrong if I say something that is wrong.
As I understand it, forced marriage cases are outside the graduated fees scheme, and so are effectively protected. That is excellent. Forced marriages are closely related to cases of abduction and those, too, remain outside the graduated fee scheme. That is also excellent. In the consultation, the Government asked whether forced marriage cases should brought within the scheme. The response from the Family Law Bar Association and the Family Justice Council was that it is far too early, following implementation of the Forced Marriage (Civil Protection) Act, to introduce this, coupled with the fact that the Government had committed themselves to proper legal funding of cases of that kind. All of what I have just said is most welcome.
There is a problem that I do not think is dealt with in the detailed analysis that I have skimmed. As a result of the complex nature of forced marriage and the issues it raises, such as shame, honour, underreporting and so on, cases frequently arise in the context of
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I shall give a couple of examples. Suppose a British Asian mother applies for a domestic violence injunction to protect herself and discloses that the father is also assaulting the daughter and planning to take her abroad for a forced marriage or that allegations of that kind are raised in the context of private law contact and residence proceedings. An experienced family law practitioner would be able to elicit the necessary disclosures and instructions in the first place and then go to the High Court seeking protection in the context of abduction proceedings or would know how to invite the court to initiate public law proceedings by directing the involvement of social services. The real problem-which is not addressed in the analysis that I have read, where statistics are incapable of being sufficiently refined to home in on this important problem-is that in all probability only very junior and inexperienced barristers would handle such work under this scheme, which simply does not pay enough for the kind of experienced practitioners who are needed.
Private law cases, as the noble and learned Baroness, Lady Butler-Sloss, has just illustrated, can be very complex and lengthy, requiring witnesses, interpreters, findings of fact and skilled handling of an often very distressed lay client. That is the problem which I know concerns many in the Family Law Bar Association and the Family Justice Council and comes out of the practical experience of someone such as Khatun Sapnara. If that is the case, it is a serious problem for the small minority of very vulnerable people who need to be properly protected by a skilled and senior branch of the legal profession.
Lord Carlile of Berriew: My Lords, I am speaking in this afternoon's debate not because I am a shop steward for the family law Bar, but for two particular reasons. The first is the seriousness of the work. This was brought home to me over 20 years ago, when I had completed what turned out to be my last case in family law. I achieved what I thought was a satisfactory settlement for access to children for my male client, a father of two. Within a very short time, he murdered both children out of revenge against his wife for what had happened in court. If ever a situation could bring home to a lawyer how serious and responsible this kind of work was-for it appeared to be a perfectly ordinary case in a small Welsh town-that was it.
My second reason for being here is that last week I happened to be at a social gathering that involved the retirement of a judge who specialises in family work, including, in particular, public law children's work. I conversed with a lot of judges-circuit judges, a couple of High Court judges and district judges-and
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Of course, I accept that both the matters that I have mentioned are merely anecdotal evidence, but I do not believe that there is much better evidence on these issues than anecdotal evidence. We can debate reports by economists until we are blue in the face; we can argue about the basis for their inquiries; we can quarrel about the methodology of their research; and we can certainly, as we have already done, discuss the meaning of their figures. We can also take some very misleading international comparisons, too, but I urge the Minister not even to enter into those because we are dealing with very different types of systems.
However, essentially, we are dealing with a practical question here, and I applaud the noble and learned Baroness, Lady Butler-Sloss, for raising it here today. The core of that question is where the welfare of children lies in relation to the provision of fees for legal aid lawyers. Are we here to pay lip service to the welfare of children or to do real service to it? The Government-whose motivation is good-repeatedly pay lip service to the welfare of children, but this order will mean that children will suffer. The Minister is shaking his head but he does so, I am afraid, against the overwhelming body of evidence from those-and I say this with great respect to him-who are possibly rather better informed than he is about what happens in family courts every day of the week.
We must bear in mind that we are not talking simply about a few whinging barristers or solicitors who are complaining about the fees; we have heard in this debate from the immediate past president of the Family Division of the High Court, and, remarkably, in connection with this debate, we and the Justice Committee have heard from the current president of the Family Division of the High Court. In my recollection, it is unprecedented for heads of division to enter into a debate of this kind with such energy. I remind the Committee what Sir Mark Potter, the president of the Family Division, said on 2 July this year in his Hershman/Levy Memorial Lecture to the Association of Lawyers for Children. He reported serious delays in cases, partly because of the reduction in CAFCASS and the delay in obtaining reports for courts. He went on to warn Ministers-this was his word-"forcibly" over their plans to reform legal aid funding in children's cases, and he referred to the cuts as a threat to both efficiency and delay. The use of the word "threat" by the current president of the Family Division is remarkably bold. It would be a remarkably bold statement from any judge but particularly from one-I am sure the noble and learned Baroness will agree with me-who is not naturally given to delving in politics if he can possibly avoid it; he is not a government scientist. He said that if lawyers left this area of work, there would be a rise in the number of people representing themselves and further delays caused by, as he put it,
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He said hearings would be less focused and appeals more likely, and he attacked the Legal Services Commission over what he called a discouraging lack of realism in its apparent determination to disregard the warnings that he and others were giving.
I do not want to repeat what has already been said so skilfully and forcefully by the noble and learned Baroness. She has drawn your Lordships' attention to the reports of the Merits of Statutory Instruments Committee and the Justice Committee. She has already drawn attention to the argument-and it will remain an argument because we are not going to solve it here-about the nature of the figures that have been produced. Ultimately, if this order remains in force in its present form, we will have discriminatory legislation. It will discriminate against women litigants-because many of the litigants in this area are women-and it will discriminate, particularly, against children, as I have already said. It will discriminate strongly against women and children from black minority ethnic groups because some of the least skilled litigants and litigants in person in this area are women who do not have the social skills to be able to represent themselves in court because their customs do not give them social skills. As anyone who has ever tried a case with litigants in person will know, there is nothing worse in a court than a frightened litigant in person appearing before a judge.
As the noble and learned Baroness said, it will also discriminate against female barristers because women form the greater proportion of barristers doing this kind of work. They do it far better than most men possibly can because they have an understanding-I hope this is not a sexist expression; if it is, I make no apology for it-of issues that sometimes male lawyers find it difficult to get their heads around. The effectiveness of what the Bar and female advocates have done in this area has amply justified the view that the money has been well spent; compared with many other areas of the law, there have not been galloping increases in legal aid funding.
The Baby P case and the greater intervention of local authorities in the welfare of children are not going to result in fewer cases but in far more, as Sir Mark Potter has said. There is nothing in this order that promises that those cases will be dealt with fairly and efficiently; it will be absolutely the contrary.
Lord Thomas of Gresford: My Lords, following my noble friend Lord Carlile, a good starting point to understanding why these cases have become more complex is the evidence given by the Association of Lawyers for Children to the judicial committee in the House of Commons.
Lord Hunt of Wirral: The Justice Committee.
Lord Thomas of Gresford: The Justice Committee. It set out a list of issues; there may be many more, but this is what it assumes. There is a vast area of new jurisprudence and obligations arising out of the European Convention on Human Rights; there is an ever-increasing volume of papers in children's proceedings arising from the ECHR; there are new forms of documentary
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Then there are advances and ongoing research in medical science, especially related to injuries, and in the understanding of child abuse. I had some experience of that in a case in July. I was dealing with the criminal end of it but the whole of the family proceedings were before me. The case had lasted about six days, with a vast amount of documentation, exhibits and medical evidence, with experts disagreeing on either side, and with the judge having to come to a conclusion and counsel on both sides doing their best to cope with difficult medical issues. Then there are diversity issues and a matter to which my noble friend Lord Carlile referred-the problems that many litigants have with English, it being their second language. There are also litigants with learning difficulties and so on. All these problems have added up to cause great difficulty in the family courts.
6.15 pm
It is ironic that at the moment, when public concern about the protection of children is rising as a result of the Baby P case and other cases, the Government step forward and cut the provision for legal aid in this sensitive area. There are times when one appreciates the huge gap that has opened up between government and the reality of what goes on in the courts. I do not know how many of those behind the Minister today have practised in the courts or have been in the courts and heard cases, but it seems that much of the legislation that comes forward from the Government is not based on proper evidence. The Justice Committee referred in its report to the complete lack of adequate research on this matter-for example, research into the impact of the provisions that are being put forward on the suppliers of legal services.
On other occasions, the Minister has said that the gaps will be filled by in-house advocates, the provision of alternative business initiatives or other things that do not exist at the moment. An order was introduced in July and put into effect in August 2009 in the context of a system of legal services that does not exist. If the Minister goes back to what he has done in the past and relies on this pattern of supply-on the future that he foresees-he will be doing a great disservice to the seriousness of the issue. The family service is for vulnerable children and families and, as the current economic climate gets worse, relationships crumble, marriages break up, children suffer, violence enters the home and the problems that come before the courts get more difficult and complex.
All are agreed that legal aid expenditure must be controlled, but the people who appear in court are not there for the money but because they are dedicated, whether they are barristers, solicitors or advocates. In 2006, the noble Lord, Lord Carter of Coles, wanted to shift legal aid from piece work to block contracts and from paying for time to paying for outcomes. What
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Our view is that the proposals before us in this order will simply cause future problems. They leave too many vulnerable people without help. Families will run into greater difficulties financially and otherwise, and the state will be torn between removing children and saving money. Ultimately, the lack of properly considered ancillary relief will push broken families into the path of destitution.
The other argument advanced by the Government is that it is all swings and roundabouts. "Yes", they say, "we are reducing the provision of legal aid by £13.5 million, but we are paying people more for less". In other words, they are paying more for the less complex cases and taking money away from the more complex to pay for the first group. However, that ignores the basic principle of how the legal profession works, has always worked and, one hopes, will always work-namely, that more experienced practitioners will do the more difficult cases. That is the point made very strongly by the noble and learned Baroness, Lady Butler-Sloss, who is to be heartily congratulated for bringing this matter forward.
You cannot expect experienced practitioners to go into the smallest cases to get more money. In Hong Kong, it was a joke that when you joined the Hong Kong Bar in the criminal field, in the first six months you would find yourself either prosecuting or defending in a murder case. As you made your name and became better known, you would go down the courts and in the end appear in the magistrates' court for huge fees, paid by people with enormous fortunes who were being done for speeding. You could see how the profession in Hong Kong was being dragged down in that way. Structuring a legal aid system in such a way that the more experienced people are tempted to do the less difficult work is crazy.
One hopes that we will hear from the Minister that the Government have something a little better in mind for the future and that they will not pursue the course that they have so inadequately pursued so far.
Lord Hunt of Wirral: My Lords, first, I declare my interest as a practising solicitor and partner in the national commercial law firm, Beachcroft LLP. I have benefited greatly by the debate initiated by the noble and learned Baroness in laying her Motion to take note of the order that came into force as long ago as 4 August. As she pointed out, the order makes changes to the legal aid family barrister fee scheme-the family graduated fee scheme, or FGFS.
The justification that the Government have given for these changes, on the surface at least, sounds reasonable. They have increased the basic rate paid to counsel for public law children cases by approximately 17 per cent and reduced and abolished some of the special issue payments made to barristers, making a large saving for the legal aid budget. At least, I might have thought that they sounded reasonable until I heard
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