Legal Aid, Sentencing and Punishment of Offenders Bill
(12 years, 4 months ago)
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Lord Beecham
“( ) Before making arrangements under subsection (2)(c), a draft order with the proposed arrangements must be laid before, and approved by an affirmative resolution of, each House of Parliament.”
Lord Beecham
My Lords, after the nerve-tingling excitement of the debate on the previous amendment, we come to arguably more prosaic matters. The amendment deals with the provision in Clause 2 under which the Lord Chancellor would have the power to, as the Bill quaintly puts it,
“make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor’s functions under this Part”,
which is perhaps a little otiose. The crucial point arises under subsection (2), under which he may make arrangements for a variety of things:
“making grants or loans to enable persons to provide services or facilitate the provision of services … making grants or loans to individuals to enable them to obtain services, and … establishing and maintaining a body to provide services or facilitate the provision of services”.
The amendment would require any such arrangements to be made by way of an order that would have to be approved by an affirmative resolution of each House. That is consistent with the creation of what presumably, or potentially, would be a new quango—something that the Government have been at pains to dismantle wherever they have spotted one hitherto—and with the other provisions in Clause 2(2). It is necessary for there to be adequate parliamentary scrutiny of any such arrangements.
I confess to not having understood quite what the Government’s intentions are in respect of this clause; the Explanatory Notes do not live up to their title. Perhaps the Minister could sketch for us what in fact the Government have in mind regarding this provision. Do they propose to set up a quasi-Legal Services Commission? Will they set up some kind of Tesco law outfit that would be contracted to provide services more widely and perhaps on a less commercial basis?
What kinds of loans or grants are envisaged to individuals to enable them to obtain services? This is something of a novel concept—funding litigation by way of a loan from an organisation set up, presumably, by the Government. What sort of body is envisaged to provide services or facilitate their provision, given that the LSC disappears? None of this is apparent in the Bill or, as far as I can tell, in the Explanatory Notes, and it would be helpful if the Minister could enlighten the Committee about the ultimate intention.
Under Clause 2(5) there is a provision that allows the Lord Chancellor to make different arrangements under this clause—relating both to the matters to which I have referred and to remuneration, which we will come on to in a subsequent amendment—with regard to different areas in England and Wales, different descriptions of case and different classes of person. Again, it would be helpful to know what the Government have in mind. Would there be a different system of grants and loans according to different areas of law or in different parts of the country? What are the Government’s intentions, and how would they go about developing them? What consultations do they propose to hold, or indeed have they held, about this? In particular, what would be the impact not only on the legal profession but on the voluntary sector, law centres, Citizens Advice and other bodies? As I say, none of this is apparent in the Bill, hence this is something of a probing amendment. In any event, if the Government are to proceed along the lines sketchily laid out here, parliamentary approval for their proposals should be a prerequisite, and that is ultimately what the amendment comes down to.
The Minister of State, Ministry of Justice (Lord McNally)
My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.
The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.
Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.
This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.
Lord Beecham
My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.
Lord McNally
If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.
Lord Beecham
“( ) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3), the Lord Chancellor shall consult—
(a) the Bar Council;(b) the Law Society of England and Wales;(c) the Institute of Legal Executives; and(d) organisations representing the legal advice movement.( ) Where the Lord Chancellor makes regulations in accordance with subsection (3), he or she shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.”
Lord Beecham
My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,
“arrangements for the purposes of this Part”—
not just this clause—
“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.
The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.
On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.
As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.
Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.
Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.
There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.
Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.
The Access to Justice Act provides:
“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.
That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.
Lord McNally
My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—
Lord McNally
Perhaps he would like to move the next four groups formally as well.
Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,
“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.
I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.
The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.
In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.
Lord Carlile of Berriew
If there are circumstances in which it would be inappropriate to consult the Law Society and the Bar Council about payments to be made to their members from public funds, will the noble Lord please explain to us what those circumstances are?
Lord McNally
No, my Lords. I go back to what I have said. Neither I nor my noble friend the Lord Chancellor wants to allow the Opposition to sprinkle the Bill with “must” in this respect. We need to apply common sense to this matter. I would be as hard put as him to find a reason why one would not consult such bodies—indeed, I would add the Institute of Legal Executives to the list. Common sense dictates that a Lord Chancellor would want to do this. I will give way but I add, to help the noble Lord with his next shaft, that that seems to me the sensible thing to do.
Lord Carlile of Berriew
I am very grateful to my noble friend and I apologise for interrupting him again but this is intended to be a shaft of light and not a bolt of lightning. Can he think of any circumstances in which a failure to consult ILEX, the Bar Council or the Law Society about their respective members’ pay would not be judicially reviewable? Surely, it is right that a failure to consult would provide a certain judicial review against the Government.
Lord McNally
One of the joys of this job is answering questions on the law posed by learned QCs. I honestly do not know whether that situation would be judicially reviewable. However, we do not think that it is necessary to include “must”. We have made it very clear that a sensible Lord Chancellor would consult these bodies and perhaps if some future—
Baroness Butler-Sloss
I am very grateful to the Minister but, speaking as another lawyer, the problem with “may” is that something may not take place. That is the point that the noble Lord, Lord Carlile, is making. If the Lord Chancellor has to do something, it is straightforward. However, if he may do something, he does not have to do it. The words used by the Minister may not actually meet the point.
Lord McNally
But if he “may” and he does not do it, again from my layman’s view and from what I gather my noble friend Lord Carlile was saying, that “may” would be tested by judicial review.
Lord McNally
The noble and learned Baroness asks that from a sedentary position. That is the position that the Government have come to. Again, my right honourable and learned friend at the other end of the Corridor will see this exchange. Whether or not this is a matter on which one should go to the wall, I do not know. I am not sure how many consultations went on with the previous Administration.
Lord Bach
I may not have been party to many of them, but I can assure the noble Lord that of course there were consultations with the various bodies representing lawyers of various kinds about payment. They did not always satisfy the lawyers involved, but the important point is that there was genuine consultation on these matters. For the life of me, I cannot see why the Minister cannot accept the amendment.
Lord McNally
The noble Lord knows very well why I cannot accept it, but I hear what has been said. If the noble Lord will withdraw the amendment and the position remains the same at Report, it is best that we return to the matter then. I cannot take it any further now. I also have a slight feeling that this desire to replace “may” wherever “must” appears is not always entirely helpful to good government, but we will see.
Amendments 9 and 10 seek to convert into duties the Lord Chancellor’s powers under Clause 3 to set and monitor quality standards, as well as to accredit organisations against those standards—here we go again. As I shall explain, these amendments are unnecessary. The current provisions in Clause 3 enable the Lord Chancellor to establish a system of accreditation of legal aid service providers. Accreditation may be either by the Lord Chancellor or by those authorised by the Lord Chancellor to do so. These powers are similar to those currently given to the Legal Services Commission in relation to the Criminal Defence Service and Community Legal Service.
The Legal Service Commission’s existing quality assurance standard is the specialist quality mark. This standard aims to demonstrate that organisations that hold a contract with the commission are well managed, provide a good level of client care and have systems in place to ensure delivery of good-quality advice. The Legal Services Commission also accepts the Law Society’s Lexcel quality standards as entry criteria to providers seeking to obtain an LSC contract. The LSC is committed to ensuring that it contracts with providers that deliver high-quality services for its clients. Its successor will have the same job. The standards must be met and accreditation obtained prior to award of contract and throughout the lifetime of a contract. This compares favourably to the privately funded market, where these standards are not mandatory.
This is all done under the existing arrangements and ensures high-quality advice. There is no intention to derogate from the existing model in future under the provisions of this Bill and, accordingly, a duty to establish, maintain and accredit against quality standards is not required when the clear intention is to continue with the arrangements that have served the legal aid market and the quality of service delivered by that market so well under the current framework.
Amendment 11 concerns the Lord Chancellor’s power to make arrangements for the accreditation of legal aid service providers against quality standards under Clause 3. Specifically, the amendment seeks to require the Lord Chancellor to consult with the Bar Council, the Law Society and the Institute of Legal Executives prior to making arrangements for accreditation. This amendment assumes that the Lord Chancellor would seek to introduce a new accreditation scheme to replace the existing quality standards that must be met by a potential legal aid service provider prior to contracting with the Legal Services Commission—namely the LSC’s specialist quality mark and the Law Society’s own Lexcel standard.
In practice, it is highly unlikely that the Lord Chancellor would seek to develop a new standard. Legal aid providers are familiar with the existing standards, and these have worked well since the introduction of contracting to the legal aid sphere. Given their efficacy, and the inherent costs and time required to establish any new standard, there is no obvious need to develop and introduce one.
However, we cannot of course completely rule out the possibility that a new standard might be introduced at some point in the future under the provisions of the Bill. In that eventuality, the Lord Chancellor would, so far as it would be constructive and appropriate, engage with relevant representative bodies in the development and design of any such scheme. There is no need to make this a requirement in the Bill. The regulatory aspect of any such scheme would, in all likelihood, require engagement with the bodies mentioned in the amendment, as well as with the Legal Services Board and others—for example, the Institute of Advanced Legal Studies—to ensure that such a scheme was fit for purpose and had the support of the professions.
Historically, this engagement has always taken place and there is no reason to assume that the situation in the future would be any different. A recent example of this kind of collaborative working is the quality assurance scheme for advocates. The work was initially taken forward by the LSC and the Ministry of Justice, with the input of all relevant stakeholders, and is now being led by the regulators operating as a joint advocacy group. The JAG is made up of the three main regulators of advocates: the Bar Standards Board, the Solicitors Regulation Authority and ILEX Professional Standards. This situation did not arise as a consequence of statutory requirement; it simply represents what is required in order to get any new quality standard established with the requisite support from the sector, and this would apply irrespective of the statutory framework under which any such scheme would be introduced.
Amendment 12 concerns the provisions in Clause 3 that enable the Lord Chancellor or persons authorised by the Lord Chancellor to charge for accreditation and monitoring of persons providing legal aid services. There are, of course, significant resource implications attached to the running of such schemes. These provisions would allow any accreditation body to meet its costs in carrying out any accreditation and monitoring function, which is entirely appropriate if they are to commit resources to such a function, and this reflects the current statutory provisions under the Access to Justice Act.
The same considerations arise in respect of where the Lord Chancellor undertakes accreditation and monitoring. Significant resource implications are attached to accreditation and monitoring and it is perfectly proper that those who wish to seek accreditation in order to undertake legally aided work are able to be charged in respect of that accreditation and the monitoring of the services that they provide. In conclusion, the provisions on charges for monitoring and accreditation are entirely appropriate and reflect the current statutory position.
Amendment 104 would require the Lord Chancellor to consult prescribed individuals and bodies before making regulation for criminal legal services for individuals involved in criminal investigations or proceedings. Clause 14 creates a power to make regulations that prescribe the advice and assistance that must be made available if the director has determined that a person qualifies for advice and assistance. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999 that require the Legal Services Commission to fund such advice and assistance as is considered appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings are distinct from those provided under Clause 12 to individuals arrested and held in custody. The services that we are talking about include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Lord McNally
No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.
Lord Howarth of Newport
Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation—all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:
“This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s”.
That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.
In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.
Lord McNally
If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.
That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.
I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.
Lord Beecham
I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.
The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:
“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.
In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.
Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.
I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.
I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.
Lord Phillips of Sudbury
Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?
Lord Beecham
It strikes me that it would appeal to members of the Bar because it could be an endless source of work for them, but I do not think that that is the best way to make law—that is, leaving judicial review as an option and expecting that to act as a deterrent. Surely it is much better to have the duties clearly outlined in the Bill and placed on the person who has the statutory responsibility to secure the availability of legal aid and advice. It seems to me concomitant with that principal responsibility. I beg leave to withdraw the amendment at this stage but I may have to return to it at a later stage.
Lord Pannick
“( ) The Lord Chancellor must ensure that—
(a) the person designated as Director has such qualifications and experience in relation to securing access to legal services for individuals as the Lord Chancellor considers appropriate, and(b) the terms on which the designated person holds the post of Director are, as regard the making and termination of the designation and otherwise, such as to ensure the Director’s independence from Ministers of the Crown (subject to any direction or guidance given under subsection (3)) in relation to the carrying out of the Director’s functions under this Part.”
Lord Pannick
My Lords, this amendment is in my name and those of the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Faulks and Lord Hart of Chilton. The amendment arises out of a concern expressed by your Lordships’ Constitution Committee, of which I am a member, and it relates to Clause 4, which will transfer responsibility for the allocation of legal aid from the independent Legal Services Commission to the Lord Chancellor’s Department. Decisions on legal aid in individual cases will henceforth be taken by a civil servant, who will be designated by the Lord Chancellor as the director of legal aid casework.
At paragraph 15 of the Constitution Committee’s report, we expressed a concern as to whether there are sufficient guarantees of independence in the Bill for the director of legal aid casework. The Constitution Committee also noted with concern that Clause 4 says nothing about the qualifications and experience required for such a post. The Joint Committee on Human Rights has, in its report, similarly expressed concern about institutional independence from the Government so as to prevent an appearance of a conflict of interest when decisions are taken about the availability of legal aid and the Government’s decisions may be challenged.
Given the central importance of the functions that will be conferred on this director, it is, I suggest, appropriate, and indeed necessary, to include in Clause 4 provisions that recognise the need for the Lord Chancellor to focus his mind on these issues of qualification and independence. Amendment 13 is not prescriptive as to the details; it leaves the detail to the Lord Chancellor. However, it is essential that this important issue of principle is addressed in the Bill. I beg to move.
Lord Woolf
My Lords, as is always the case, the noble Lord, Lord Pannick, has summarised the arguments in support of the amendment with admirable clarity. There is very little that I can add but, looking at these provisions, I should have thought that the Minister—although he may prove me completely wrong—would say, “Of course, that’s exactly what I will do. I will see that the person appointed as director has the qualifications that I consider necessary. How could I do otherwise?”. Likewise, I should have thought that he would say that of course the director must be independent. However, I urge the Minister not to be led astray by some argument on those lines. It is significant that the committees have expressed the concern to which the noble Lord, Lord Pannick, referred with the view that the position should be clearer. I say respectfully that the committees were right to take that view. We are concerned here with access to justice, which is a fundamental constitutional right. Where a right of that sort is involved, it is appropriate that the position is dealt with clearly.
The issue of what sort of civil servant would be appropriate to fill a particular role is always difficult. I remember a time when it was automatically assumed that any Permanent Secretary in what became the Lord Chancellor’s Department would be a qualified member of the Bar or a qualified solicitor. That no longer happens; the days when a barrister or solicitor would perform that role are past.
It is a different type of task that the director will perform. He will have the say-so in determining who is given access to justice—because without legal aid there may be no access to justice, and we all know that that would be a very worrying situation. Therefore, perhaps the Minister will recognise that, irrespective of the good intentions of an officeholder, sometimes it is of benefit if the person concerned is familiar with the subject involved. The experience of senior civil servants filling roles of this sort is that often departments do not feel comfortable with the independence of one of their civil servants who has been—if I may put it this way—seconded for a time to fill an office such as the one about which we are talking. In that situation it is very easy for a department to start giving instructions to “one of their own”—a civil servant whom they see as belonging to the department.
I hope that the Minister will forgive me if I give an example that occurred just before Christmas in connection with the Bill and which caused me to write to him on behalf of two of my noble friends who, with me, wanted to get the assistance of the chief executive of the NHSLA, Steve Walker. A later amendment suggests that there should be a process and a safety net to ensure that, where there might be a claim for medical negligence, a medical report should be obtained prior to litigation being started. We wished to have the advantage of the great experience of that official but were told politely and courteously that he would not be able to give us that assistance because the subject was too political for him to become involved with. I was very surprised and I am now glad that the Minister has properly responded to my concerns—although I have not received his letter—and that the position has been rectified. However, it illustrates how easy it is, when a senior civil servant is on attachment in a role such as that of the director, for those who are experienced in a department not to appreciate how important it is not to interfere with the independent way in which the individual performs their functions. Therefore, these amendments are sensible and I hope that the Minister will feel able to accept them.
Lord Faulks
My Lords, I, too, support the amendments. I will be brief, as the reasons were so admirably summarised by the noble Lord, Lord Pannick, and by the noble and learned Lord, Lord Woolf. The post of director will be critical for the preservation of whatever is left of legal aid. The concern of the committees was that there was at least the potential for conflict, as has been outlined, because the director might seek to follow the direction of the Lord Chancellor and not be suitably independent.
May I give your Lordships an example of how important the director’s powers may be and of how important it is that he or she should be seen to be independent? He will have to determine whether a case falls in the so-called exceptional cases category under Clause 9. I understand that the Minister may well be telling us in due course that this category and the availability of legal aid for exceptional cases is an effective answer or partly an answer to the apparent deprivation of access in relation to clinical negligence. I think that some of your Lordships may need some satisfying in this regard, but that I believe is one of the answers to the apparent lacuna.
Whether a case falls within the exceptional case category is bound to be somewhat controversial. Even the current decision-making exercised by the LSC is not short of critics. However, if a director is seen simply as doing the bidding of the Lord Chancellor at the relevant time, confidence in his independence will be significantly undermined. If a Lord Chancellor—not this Lord Chancellor, of course—were to decide that too many claims were being brought against government departments or the NHS, he could, at least in theory, give some rather firm guidance to the director on the process of determining such exceptional cases. Therefore, I suggest that it is vital that decision-making about the availability of legal aid should be seen not to have even the appearance of being at the whim of the Lord Chancellor or Cabinet colleagues but rather to be the proper determination by a suitably qualified director on grounds not of political expediency.
I dare say that this is very much what the Government’s true understanding of the director’s role is, in fact, to be, in which case I hope and expect the Minister to welcome these amendments, which set out, I hope in clear terms, what may be the underlying intention of the Government about the role of the director and his or her independence.
Lord Phillips of Sudbury
My Lords, I speak to Amendments 14 and 16, where my name is coupled with those of my noble friends Lord Thomas of Gresford, Lord Carlile of Berriew and Lord Macdonald of River Glaven—I am sure that the Committee will recognise that we are four hardened lawyers. I concur entirely with what has been said so far. There is no question but that the world we live in is more and more a legalised world, where law and politics are often hard to disentangle. Therefore, the need for absolute independence—not only actual independence, but perceived independence as well—must surely be to the benefit of all concerned, including the Government themselves, because if the director of legal aid casework is thought by the media to be in the pocket of the then Lord Chancellor, what good does that do anyone?
I shall add something that is a difficult point to make because I would not for one second wish any negative conclusions to be drawn vis-à-vis the Lord Chancellors whom we have had since the reform. As noble Lords will remember, in the late 1990s, holding that great post was made no longer the monopoly of a senior judge. I believe now, as I believed then, that there are some disadvantages attached to that constitutional change. I believe that it is possible to conceive of a Lord Chancellor who is not in all truth well equipped to deal with the issues implicit in this part of the Bill. That is another reason why I think that all the amendments in this group are to be supported, including Amendments 14 and 16.
I would also quickly add that Sir Bill Callaghan, who is chair of the Legal Services Commission, which is about to be abolished, has warned in very strong terms against there being any possibility of political influence on the difficult decisions that the director of legal aid casework is bound to have to take as time goes by. I think that we should listen to what that gentleman, who has been through this mill, is saying. It is a point of view supported not just by the Joint Committee on Human Rights but also strongly by my professional body, the Law Society, and, indeed, I think, by anyone else who has taken the trouble to consider this matter.
I end by briefly sketching out the purport of Amendments 14 and 16. Amendment 14 explicitly requires the Lord Chancellor to make available independent assistance to the director of legal aid casework in the work that he or she has to do, and Amendment 16 stipulates that the Lord Chancellor not only cannot give binding directions or guidance on individual cases but cannot do that in relation to arms of the state. The amendment makes it clear that there cannot be any direction or guidance in relation to,
“the Crown, Government department, executive agency or non-departmental public body”,
where any of those is a party.
I will rest my case at that, except to say that, having reviewed the Bill and the amendments down tonight—and we may want to look at this again on Report—I really wonder whether it is wise in these circumstances to allow the Lord Chancellor to direct the director of legal aid casework as to how he or she shall carry out his or her function other than in respect of a specific case. As far as I can see, although the directions to be given by the Lord Chancellor have to be published, they are not subject to any oversight by this place. In the extremely sensitive world of law, prosecution and legal aid, that power of direction seems dangerous. I hope that my noble friend will take all these amendments to heart and come back to us at the next stage with a concession that deals with the central issue.
Lord Howarth of Newport
When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.
Baroness Butler-Sloss
My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word “independence” in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.
Baroness Prashar
My Lords, I, too, support the amendments, particularly Amendment 15 in my name. I concur with all the comments that have been made so far because I am particularly concerned about the independence of the director of legal aid casework. Institutional pressure can work in very subtle ways. The director will be a civil servant and the new executive agency will be much more closely integrated into the machinery of government and subject to supervision by the Ministry of Justice. We know that the pressure to save resources can bear on individuals and therefore it is very important that there is a constant reminder that this person not only is independent but acts independently. Therefore, we need to build in some safeguards. While I am on my feet, I would like also to say that the other safeguard is the one in Amendment 18, which is about showing that the decisions made by the casework director are actually reviewed. I strongly support both these amendments. They are very sensible and I hope that the Minister will give concessions on them.
Baroness Howe of Idlicote
My Lords, as another non-lawyer, perhaps I may join in very briefly. I have listened to everything that has been said on this point, and what the noble Lord, Lord Phillips, said is particularly important. The Lord Chancellor has a different role. He might not have all the legal discipline of a lawyer, if he is not a lawyer.
I should like to make another point on the importance of independence that people are unfolding at this time. It illustrates the extent to which, if we cram everything into such a short space of time and so many Bills overlap—I am thinking about the Welfare Reform Bill and this Bill—it tends to leave us all wondering just how many amendments should be grouped together and whether they are being given the proper consideration that they should have. I very much support the intentions behind this group of amendments.
Lord Thomas of Gresford
The issue that concerns me in Clause 4 is subsection (3). Under subsection (4):
“The Lord Chancellor may not give directions or guidance about the carrying out of … functions in relation to individual cases”.
That is fair enough, but he must,
“comply with directions given by the Lord Chancellor about the carrying out of”,
his “functions”, and he must,
“have regard to guidance given by the Lord Chancellor about the carrying out of”,
his “functions”.
What does that mean? Does it mean, for example, that the Lord Chancellor can phone the director or call him into his office and say, “Now, look here, you’ve got far too many of these judicial reviews going through in relation to government business. I am not telling you about any particular case, so I am complying with subsection (4). But when it comes to subsection (3), would you please bear in mind that my guidance is that we have got too many of these cases? The judges are complaining. The lists are full.”? What exactly is intended by Clause 4(3)?
Lord Bach
My Lords, we have heard short but very impressive speeches on this very important group. Clause 4 is particularly important and it is absolutely vital that the Government get this right. We want to help them get it right all across the House. I hope that the Minister will have some freedom of manoeuvre on this matter, which is, in the end, a matter of some principle.
Perhaps I may start by commending the Government for bringing the Legal Services Commission inside the Ministry of Justice. When we were in power, we set up the Magee committee to produce a report on whether that would be an appropriate thing to do. It seemed to us at the time, and clearly to this Government, that there were a number of very good reasons why it is not satisfactory for the Legal Services Commission not to be an agency of government. In our view, it is appropriate that it should be and we commend the Government for doing that.
The problem always—it would have been as much a problem for us as it is for the present Government—is with the words “independence” and “perception of independence”. The Minister will know, as all of us know, that many interested people outside this House are very concerned about the drafting of Clause 4 and whether it meets what the Government clearly intend. No one is accusing them of bad faith here. Clause 4(4) shows that they clearly intend that this should be a system that works fairly and well. As the noble Lord, Lord Thomas of Gresford, pointed out, the wording is extraordinarily ambivalent and ambiguous, certainly as regards the relationship between subsections (3) and (4). The Government need to look at it again, and, I would argue, it probably needs to be redrafted.
I do not know whether noble Lords have had the opportunity to see an interesting, short note from Justice on this topic. Mr Roger Smith, who I think is well known to a large number of people who are interested in this issue and who has huge experience in this field, makes a very good point as to why this present drafting is not satisfactory. He says on what I think is an important part of the argument that:
“The provision will be most objectionable where the Director makes a decision to refuse legal aid for judicial review against his own minister. However justified that might be on the individual facts, it would be argued that the Lord Chancellor is being a judge in his own cause. Indeed, it may well be”—
this is the clever point—
“that interest groups are motivated to make exactly that accusation, regardless of the substantive worth of their application, precisely to obtain more publicity for their cause”.
As an example, among many others that could be referred to, he has shown where the Government have to tread extraordinarily carefully to make sure that independence is real and is perceived to be real. I therefore ask the Minister to be sympathetic and to look very carefully indeed at how this clause is currently drafted.
Lord McNally
My Lords, I am grateful to the noble Lord, Lord Bach, for the way he has summed up the debate. This clause reflects the Government’s absolute determination to make it clear that the director will be independent. I have to say that when I look at this cluster of amendments and see the names that are attached to them, I am tempted to repeat a phrase that I use occasionally about my own collection of legal advisers: if I had to pay them, I could not afford them. This is a very distinguished group of legal opinion and I make my reply conscious that that weight of opinion has been reflected in the debate.
Clause 4(4) gives clear guidance on the limits of the Lord Chancellor’s powers. However, I take on board the fact that there have been cases in the past of friction between senior civil servants and Ministers, and if Parliament is going to create an important body and function it will need to be perceived very clearly. I take the point made by the noble Lord, Lord Bach, that perception is also important. We have to get this right.
I want to make clear the point made by the noble and learned Lord, Lord Woolf. As I told him earlier, I have in fact signed off a letter to him, but cock-up often triumphs over conspiracy in these matters. As far as I can see, there was no intention to block the meeting he wanted, and somewhere in the postal system—this is not the Government’s standard promise that a letter is in the post—is his letter. I am sure that when he gets it, he will respect me in the morning because it does say that we certainly have no objection to the kind of meeting he seeks.
I am not sure that I would go as far as the noble Lord, Lord Howarth, on the point that the demonstration of independence needs civil servants to figure in television interviews and so on, although I have noted the points he made. It is also worth noting that some suggestions were made about dangers to the director’s independence—here I tread lightly into suggesting a legal form of words—but it would be ultra vires for the Lord Chancellor to interfere in directorial decisions in individual cases, and in that respect he is well protected by Clause 4(4). However, it is true that the Lord Chancellor will decide the criteria by which exceptional cases are granted funding, and these criteria will be published. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying-out of the director’s functions under Part 1 of the Bill, the Lord Chancellor cannot give directions or guidance to the director about the carrying-out of those functions in relation to individual cases.
Lord Howarth of Newport
Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?
Lord McNally
I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.
Lord Williamson of Horton
It is covered by the Bill, in subsection (5). The directions have to be published. Whether they should be in the Bill at all is another matter; but if they are in the Bill, they have to be published.
Lord McNally
I am also told that the director’s terms and conditions will govern the circumstances in which they could be dismissed. Some of the concerns that have been raised are either in the Bill or will be covered by guidance or in published directions and terms of reference from the department.
I go back to the point made by the noble Lord, Lord Bach. Clause 4 is not an attempt to create some stooge of either the Ministry of Justice or the Lord Chancellor of the day; it is to have somebody who will command public confidence and respect. I am not in a position to take note, here in a Committee stage, of the points that have been made; I will, as I said earlier, draw the Lord Chancellor’s attention to the views of the contributors to this debate. It would probably be of help both in looking forward and in winding up this debate if I were to set out the position as we see it now.
Amendment 13 seeks to introduce into the Bill a specification for the role of the director, in particular requiring that the person designated as director has such qualifications and experience in securing access to legal services for individuals as the Lord Chancellor considers appropriate. The amendment also seeks to have the concept of independence, and specifically the independence of the director when carrying out functions under Part 1, incorporated into the terms and conditions of the director’s employment. Amendment 17 provides a definition of “Minister of the Crown” to reflect the reference to the same in Amendment 13.
These are unnecessary amendments. Relevant experience and qualifications are, of course, factors that are taken into account in any appointment, and the recruitment of the director is no different. We can see no persuasive reasons why it should be necessary to include these considerations in primary legislation. The Committee should also note that the framework document which will govern the relationship between the Ministry of Justice and the new executive agency will also reflect the principle of independence of decision-making. The incorporation of this principle into the terms and conditions of the director would add nothing as the effect is already secured through the existing provisions.
Clause 4(2) requires the Lord Chancellor to,
“make arrangements for the provision to the Director by civil servants or other persons (or both) of such assistance as the Lord Chancellor considers appropriate”.
This means that the director will also be assisted by those with relevant experience and qualifications in discharging the director’s functions under Part 1 of the Bill, providing the necessary expertise alongside the director’s own. This support is essential as, in practical terms, it is not the case that the director will personally make all decisions on eligibility. That would be unworkable given the volume of applications made for legal aid.
Clause 5 sets out the director’s powers of delegation and, of course, this anticipates the delegation of decision-making on an individual application. As such, the need to ensure the requisite knowledge, skills, experience and qualifications for those making decisions applies to all and the proposed amendment does not further this imperative.
On the limb of Amendment 13, which seeks to have the concept of independence incorporated into the director’s terms and conditions, this is also an unnecessary amendment. The existing provisions of Clause 4 provide statutory protection to the director against ministerial or other political interference. In particular, while the Lord Chancellor can issue directions and guidance to the director about the carrying out of the director’s functions under Part 1, the Lord Chancellor is specifically prevented under Clause 4(4) from issuing directions or guidance about the carrying out of the director’s functions in relation to individual cases.
It is important to note that the prohibition in Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5. This is an important safeguard.
Lord Phillips of Sudbury
I am sorry to interrupt my noble friend’s flow, but surely for him to argue, as he just has, that all is well on the independence front because Clause 4(4) states that the Lord Chancellor cannot direct the director of legal aid casework in individual cases is small comfort given that it leaves intact Clause 4(3), which enables the Lord Chancellor to give directions, which the director must comply with, on anything to do with the director’s functions except in an individual case. A whole wide sea of discretion is given to the Lord Chancellor by that provision, which goes to the heart of the independence of the director.
Lord McNally
The noble Lord is repeating the thrust of a number of contributions that I have heard today. My response indicates the Government’s position at the moment. Again, along with this response will be the comments that he and other noble Lords have made. Let us see where we go from there. It is an important safeguard to ensure the director’s independence in carrying out his or her functions in relation to individual cases, which in the Government’s view is not improved or added to by the amendment.
Amendment 14 seeks to amend Clause 4(2) by removing reference to other persons who may be provided to the director under arrangements to assist in the discharge of functions under Part 1. Again, this is an unnecessary amendment. To the extent that independent persons are envisaged under the new scheme, the current drafting of Clause 4(2) does nothing to prevent such individuals being engaged. The amendment also may have unintended consequences that could serve to undermine the efficient operation of the new scheme. Were this amendment to be accepted, it would limit the range of those individuals who could be engaged to assist the director to either civil servants or independent persons. It may of course be that the director will in future only ever need the assistance of civil servants and independent persons to discharge their functions. However, we cannot be sure with any certainty that this would be the case in all eventualities in the future.
The current formulation of “or other persons” provides the requisite flexibility to meet any future scenario, including the provision of independent persons. Accordingly, Amendment 14 merely limits the pool of people that might be available to assist the director, with potentially problematic unintended consequences for the operation of the scheme.
Amendment 15 to Clause 4 is intended to alter the provisions in relation to the independence of the director of legal aid casework. As I hope to explain, we believe the amendment, again, is unnecessary. I will briefly set out for the benefit of noble Lords the role and key functions of the director and why I believe that independence is important and why it is already enshrined in the Bill. Under Clause 4, the Lord Chancellor is obliged to appoint a civil servant as a statutory officeholder who will be responsible for making funding decisions in individual cases, including funding decisions in relation to exceptional funding applications under the Bill.
The statutory officeholder is to be known as the director of legal aid casework. The Lord Chancellor is also obliged to provide civil servants or other persons, or both, to assist the director in carrying out their functions. The director must make determinations in legal aid cases in accordance with the provisions of Part 1 of the Bill.
Under the new arrangements, Clause 4 is potentially the most important. It ensures that the director has independence in carrying out functions and is free from any political interference in making decisions in relation to individual cases. This independence is enshrined by the specific provisions within this clause, specifically subsection (4), which the amendment would delete. Subsection (4) prohibits the Lord Chancellor from giving guidance or directions in relation to the carrying out of the director’s functions in relation to individual cases.
There are provisions within Clause 4 that oblige the director to comply with directions given by the Lord Chancellor about the carrying out of the director’s functions, and to have regard to guidance issued by the Lord Chancellor about the carrying out of those functions, but crucially such guidance and directions cannot relate to the carrying out of the director’s functions in relation to individual cases. This protection of the director against interference when carrying out their functions in relation to individual cases is an important safeguard.
I would like to assure noble Lords that the protection of this independence is a fundamental tenet of the new arrangements, which provide the necessary safeguards that are required to make the new arrangements work. It should be noted that the director is a separate office from the Lord Chancellor created by statute. As I have said, under Clause 4(4), the Lord Chancellor cannot give directions or guidance to the director about the carrying out of the director’s functions in relation to individual cases. That is a very explicit assurance about independence. The protection offered by Clause 4(4) extends to anyone, including civil servants, to whom the director may delegate his or her decision-making functions in accordance with Clause 5 of the Bill. I believe that the Bill already establishes a proper role for the director, free from any political interference in relation to the carrying out of his functions in relation to individual cases.
I now turn to Amendment 16, which seeks to amend Clause 4(4) by specifying a category of case in relation to which the Lord Chancellor cannot issue guidance or directions. As I have said already, Clause 4(4) provides the director of casework with statutory protection against interference in individual cases; to seek to specify classes of case in a clause that bars interference in any individual cases cannot in my view add anything to the existing provisions. The Government’s policy has been consistently that proceedings where the litigant is seeking to hold the state to account by judicial review are important and should generally be retained within the scope of civil legal aid. This is expressly covered in paragraph 17 of Part 1 of Schedule 1 to the Bill. As with other areas within the scope of civil legal aid, in a judicial review case that is within the scope of civil legal aid, the director’s functions under Part 1 of the Bill are to decide whether in each particular case the individual qualifies for funding.
Lord Thomas of Gresford
I wish to add further concerns, having heard the Minister’s reply. I understand that the director would have to follow directions and guidance given on matters of merits and eligibility. Standards would have to be set as to what has to be satisfied, and eligibility in relation to finance is something that the Lord Chancellor would be concerned with. But I have some concerns about the emphasis on individual cases as opposed to a category of cases.
We sought in Amendment 16 to take one category of case—namely, cases against the Government or government agencies, or whatever. The Lord Chancellor ought not to be able to interfere in any category of case that is within the scope of Part 1 of the Bill. He should not be able to say that there are too many of these cases and we have to cut down, and the wording leaves that open.
Another matter that concerns me is exactly what is intended. The Minister used once the expression “an executive agency”. What is that? Is it a body within the Ministry of Justice or is it to be set up separately? Is it to be staffed only by civil servants or is it to be able to recruit its own people to it? What is the relationship of the executive agency headed by the director to the Ministry of Justice? We are very familiar with the concept of the Director of Public Prosecutions and the sometimes rather fraught relationship between the DPP and the Attorney-General, who is responsible for the director’s decisions in a parliamentary sense but not necessarily able to give him directions or control him in any way. So the independence of the DPP is a very interesting model which I would have thought the director of legal aid casework ought to follow. That means having an executive agency recruiting its own people and a constructive tension between the director and the Lord Chancellor, or whoever the Minister of Justice happens to be at the time. I would like to probe the concept a little further at this stage. What is this executive agency? How will it be staffed? What is the relationship between its director and the Minister of Justice? It may be that I am posing these questions at the wrong stage in this debate. If my noble friend is not able to answer these questions at the moment, I am sure he will explain them to me at a later stage.
Lord McNally
I can do no more than suggest that the noble Lord reads the Bill, because it sets out the structure for carrying out this function within an agency which is within the Ministry of Justice and staffed by civil servants appointed on the criteria which have stood us in good stead for the past 130 years. Again, as with the other contributions to this debate, I will take those matters back and see whether there are areas that can be better clarified to give my noble friend the assurances that he requires.
Lord Pannick
My Lords, I am grateful to the Minister for the constructive approach that he has taken to the important issues raised by this debate. I would ask him to reflect with the Lord Chancellor on the central points which have been made by noble Lords on all sides of this Committee, and to whom I am very grateful. A civil servant—the director—is going to have the crucial task of determining who has effective access to justice. The director is going to do that, often in contexts where the Government are the potential defendants. It is then striking, as many noble Lords have pointed out, that Clause 4 says nothing express about ensuring the independence of the director. This is a particular concern, as noble Lords have emphasised, in the light of the uncertainty as to the limits of Clause 4(3).
Clause 4(4), as the noble Lord, Lord Thomas of Gresford, has emphasised, is not sufficient protection because it does not prevent directions from the Lord Chancellor to the director about categories of cases, or indeed as to the general approach to be adopted by the director. As I understood it, the Minister's response to this was that the Government's position today—although the Minister emphasised that that may change—is that they are as keen on independence as everybody else. If I understood him correctly, he said that independence is a fundamental tenet of this arrangement. The position of the Minister and the Government today is that Clause 4 is designed to achieve that objective and therefore these amendments are unnecessary.
The noble Lord will appreciate, and I hope that he will communicate this to the Lord Chancellor, that around this Committee the view is taken that, with great respect, that is not good enough because noble Lords prefer an express statement of the basic constitutional principle on which we are all agreed as to independence. Noble Lords prefer the drafting of Clause 4 to contain clear limits on the powers, in this context, of the Lord Chancellor and clear safeguards of the independence of the director. I hope that the Minister will be able to ask his officials to look again at the wording of Clause 4 so as to achieve these objectives, otherwise we will undoubtedly be returning to this matter on Report. For the time being, I beg leave to withdraw this amendment.
Lord Bach
My Lords, I am sorely tempted to test the opinion of the House on Clause 4 tonight; I think it would be the better course to take. I am going to resist that sore temptation, but only just, because—here I am supporting what the noble Lord, Lord Pannick, said in his closing remarks—apart from the Minister’s final remarks, his response to the debate was unsatisfactory. His response runs the severe risk—against the Government’s real instincts, I am sure—of being careless of the independence point. That is a fundamental point and, as the Minister himself pointed out, exactly the sort of point that this House is quite good at dealing with in revising legislation that comes from another place. Frankly, the current draft is just not good enough, and this point is so central that at some stage the House will have to take a view on the issue. I very much hope that the Minister will use his powerful persuasive powers to persuade others in the ministry that the clause must be altered for the better.
Lord McNally
I have a full speaking note on Clause 4, but I have heard what the noble Lord has said. I am not sure how persuasive my powers are. I want to read the debate in Hansard; one of the good things about Committee stage in the Lords is that it gives us a chance to hear the voices. I will consider this with my right honourable and learned friend, but I will spare the House my speaking note on Clause 4.
“Legal Aid appeals
(1) Decisions of the Director under this Part shall be reviewable by a first-tier tribunal established under the Tribunals, Courts and Enforcement Act 2007.
(2) The primary functions of the tribunal in respect of subsection (1) are to—
(a) consider applications for review; and(b) conduct and determine reviews,following a decision being made by the Director in respect of eligibility for legal aid under Part 1 of this Act.(3) A decision of the tribunal may be reviewed or appealed in accordance with the Tribunals, Courts and Enforcement Act 2007.”
Lord Bach
This, I hope, is one of the least controversial of our amendments. If enacted, it would ensure that the decisions of the director of legal aid casework were subject to the ordinary standard mechanism within the United Kingdom for challenging decisions of administrative bodies—that is, the tribunal system. We are going to hear a lot about tribunals during the course of the Bill. The Government’s line about tribunals—they have told us this already and will no doubt repeat it—is that the First-tier Tribunals that were set up to be user-friendly are a success, are the right forum for challenging administrative decisions and are an effective forum. So we know that the Government support the system of tribunals.
We have an array of First-tier Tribunals, the name given by the Tribunals, Courts and Enforcement Act 2007 to those bodies where appellants can appeal a decision in the first instance. Each of those tribunals is there to ensure that decisions made by emanations of the state are legally sound. For example, the General Regulatory Chamber of the First-tier Tribunal hears appeals against decisions by the Charity Commission, the Claims Management Regulator, the Office of Fair Trading, the Environment Agency, the Information Commissioner and local authorities. The Social Entitlement Chamber, where we would imagine these cases being heard, hears appeals against decisions by bodies that deal with social welfare and disputes about income support, jobseeker’s allowance, pensions and unemployment support allowance. There are four other chambers but the Committee will be pleased to hear that I do not intend to list all their duties. It should be clear that the established mechanism for challenging decisions by state bodies is the tribunals system, and we believe that in this amendment we are following the logic of the existing system.
Lord Phillips of Sudbury
Is one to read Amendment 18 as meaning that on any appeal from a refusal there will be an oral hearing, or is it possible that the initial appeal could be dealt with on paper? That might be a great deal quicker and cheaper in the first instance. One could then reserve an oral hearing for the really difficult cases.
Lord Bach
My Lords, I hope that I am correct in saying that our intention is that there should be a process whereby written applications can be made, but always with the provision that there can be an oral hearing in certain circumstances. The noble Lord makes a good point. I beg to move.
Lord Thomas of Gresford
My Lords, I wish to speak to Amendment 96 in my name. We take the view that the appeal to the First-tier Tribunal against a refusal of legal aid is a little excessive. However, we take the point that was made by the noble Lord, Lord Bach, a moment ago that the European convention requires that there should be an appeal process. We note that in Clause 11, headed “Determinations”, there is a provision in subsection (5) that regulations,
“must make provision establishing procedures for the review of determinations … and of the withdrawal of such determinations”.
That is fine, but we do not think that the review should be carried out by someone else within that executive agency about which I was talking a moment ago. We believe that an appeal should be made to an independent panel.
Your Lordships will recall that on Second Reading or on the first day of Committee I was involved in a clash over who had the longest involvement in legal aid. I recall that legal aid applications and appeals were very well dealt with by an independent panel of local solicitors within the area. It was all devolved. You did not have to come to London or attend a First-tier Tribunal in whatever building that tribunal sat. The matter was dealt with locally by people who understood the locality and probably knew the solicitor who was appearing before them to make an appeal, and had some idea how far they could trust that individual and how experienced he was.
Lord Woolf
As someone who was a member of such a committee, I should say that it also included members of the Bar. In view of what is happening to legal aid, members of the Bar may well be interested in performing this function.
Lord Thomas of Gresford
These events occurred long ago when I was in my solicitor phase. I was called “Mr” in those days. It was only when I became a barrister that I became “Esquire”, and later I became “learned”. These are the progressions one makes within the profession. Looking back to my early days, I think that the noble and learned Lord, Lord Woolf, is quite right: barristers were members of the panel that considered these applications. It was a perfectly satisfactory method of appeal, which was independent of the Government who were providing the funds. I envisage an independent panel to review the director’s decision, not an in-house person but people who could be referred to more cheaply than the First-tier Tribunal to which the noble Lord, Lord Bach, referred. I commend that process as opposed to the one put forward by Her Majesty’s Opposition.
Lord Carlile of Berriew
My Lords, having inherited a number of returns from my noble friend Lord Thomas of Gresford when we were both barristers outside London many years ago, I share the memory of the effectiveness of those committees, including the gloss placed on it by the noble and learned Lord, Lord Woolf.
I would like to point out a parallel that exists today. Those of us who from time to time undertake very high-cost criminal cases have to apply for permission to the Legal Services Commission to do certain aspects of preparation. If the commission refuses permission, for example to obtain an expert witness’s report or to make photocopies of original documents—believe it or not, it can descend to that—there is a committee made up of practising lawyers who determine whether that permission should be granted, and it works very well. If the committee decides against the applicant, he or she has the opportunity to apply for permission to apply for judicial review. That involves a paper process, initially before a judge. If permission is refused, it is open to the applicant to have an application heard before the full court, but it is far from universal that that is done.
We therefore have in the existing provisions for very high-cost cases something very similar to that described by my noble friend Lord Thomas of Gresford. I suggest to the Minister that this would be a practical way of dealing with this appeal problem that would cover the concerns of the noble Lord, Lord Bach, those who have signed his amendment and those of us who have signed my noble friend’s amendment.
Lord McNally
My Lords, the intention of the amendment is to establish a tribunal to review determinations made by the director about whether an individual qualifies for legal aid. This is very closely related to Amendment 96, which would make it a requirement for all reviews concerning determinations by the director under Clauses 8 and 9 to be referred to an independent panel.
The amendment is unnecessary. The Bill already establishes the director in a way that maintains and protects the director’s independence of decision-making in individual cases. The director is created by statute. Although the director must comply with directions and take account of guidance given by the Lord Chancellor about the carrying out of the director’s functions under Part 1, the Lord Chancellor cannot give directions or guidance to the director about carrying out those functions in relation to individual cases. There is already provision in the Bill for review of the director’s decisions and appeals against them. This means that there is no need for an amendment to create a separate tribunal.
Clause 11(5) provides that regulations must make provision for procedures for the review of the determinations of the director under Clauses 8 and 9 as to whether a person qualifies for civil legal aid and for the withdrawal of such determinations. There is also power in Clause 11(6) to make provision for appeals to a court, tribunal or other person against the making or withdrawal of a determination in relation to civil legal aid. The Government intend to continue with the Legal Services Commission’s existing appeal and review procedures for cases determined under Clause 8—that is, those within the general scope of the civil legal aid scheme—including the use of independent funding adjudicators. Those procedures are well established and understood, and the intention is that they will include provision for internal review of decisions by the director.
Additionally, where a client is dissatisfied with the conclusions of a review on merits grounds concerning a decision on legal representation in civil and family proceedings in scope under the Bill, the client will be able to appeal to an independent funding adjudicator. As at present, there would be no appeal against refusal on means grounds, although a client can ask for their means to be reassessed.
In reflecting the current review arrangements, there will also under Clause 9 be a right of internal review for exceptional case determinations, although independent funding adjudicators will have no role in the review of exceptional funding decisions. This is because of the particular nature of the assessment at the heart of such cases, which will focus on an interpretation of the relevant obligations under the European Convention on Human Rights to provide legal aid. Exceptional case determinations, along with all other decisions by the director, would be subject to judicial review.
This is more than adequate provision to ensure that scrutiny can be applied to the decisions of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director’s determination on criminal legal aid. I refer noble Lords to Clause 14(9)—
Lord Carlile of Berriew
I apologise for interrupting my noble friend, but he referred in passing to Clause 11(6). Can he explain to the Committee the difference between subsection (5), which requires provision establishing procedures for the review of determinations, and subsection (6), which provides that regulations may make provisions for appeals to a court? Why the difference between “must” and “may” in those two subsections?
Lord Carlile of Berriew
Clause 11(5) says “must”, whereas Clause 11(6) says “may”—perhaps echoing a point made by the noble and learned Baroness, Lady Butler-Sloss, earlier.
Lord McNally
I will have to take advice on that, but I thank the noble Lord for drawing it to my attention. I sometimes wonder whether mays and musts are not spread through a Bill according to whether parliamentary counsel gets bored with the use of “must” and decides to put “may”, but I am sure there are far more legal reasons why those choices are made.
As I was saying, there is more than adequate provision to ensure that scrutiny can be applied to the decision of the director where an individual believes that there are grounds for review. There is also provision for making regulations about the review of and appeals against the director's determination on criminal legal aid.
Amendments 97 and 98 would change Clause 11(6), which concerns determinations of whether funding should be granted for any of the matters included in Schedule 1 or any excluded cases under Clause 9. These amendments would require regulations under Clause 11 to make provision for appeals to a court or tribunal against determinations made by the director under Clauses 8 and 9 and against the withdrawal of such determinations.
I have described the intention and effect of Clauses 11(5) and (6), as well as the intention to continue with the existing, effective processes and procedures currently used by the LSC in the new model, and I do not propose to cover the same ground here, although I take the point made by the noble Lord, Lord Carlile. However, requiring provision to be made for appeals to a court or tribunal against all determinations by the director would be expensive, resource intensive and likely to lead to delay in the hearing of appeals.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available if the director has determined that a person qualifies for advice and assistance. That largely reflects the provisions in Section 13 of the Access to Justice Act 1999, which requires the Legal Services Commission to fund such advice and assistance as it considers appropriate. The circumstances in which such advice and assistance will be made available are prescribed in regulation. Advice and assistance for criminal proceedings is distinct from that provided under Clause 12 to individuals arrested and held in custody. The services we are talking about here would include those provided by a duty solicitor in court or to a prisoner preparing for his appearance before a parole board.
Although Clause 14 and Section 13 of the Access to Justice Act are framed differently, their overall effect is essentially the same. Clause 14 is intended to replace Section 13(1)(b) of the Access to Justice Act. The Bill confers a power to make regulations under Clause 14 for consistency with Section 13(1)(b) of the Access to Justice Act. That section provides that the Legal Services Commission's duty to provide advice and assistance to the individuals mentioned there arises only in prescribed circumstances, and “prescribed” means prescribed in regulations made by the Lord Chancellor.
The combined effect of Amendments 105 to 107 would require regulations made by the Lord Chancellor under Clause 14(1) to provide for appeals, but not reviews, to a court or tribunal in relation to the aspects of determination on legal aid set out in Clauses 14(9)(a) and (b).
Amendment 107 would preclude regulations allowing for appeals to any other person. The Government judge it more appropriate to allow the Lord Chancellor to make regulations, if he considers it appropriate, than to require him to do so. We will retain the existing arrangements whereby advice and assistance for criminal proceedings provided under Clause 14 are subject to a “sufficient benefit” test. In practice, this would be conducted on behalf of the Director of Legal Aid Casework by the litigator, who would provide the legal aid services. The LSC criminal contract provides that advice and assistance may only be provided on legal issues concerning English or Welsh law,
“and where there is sufficient benefit to the Client, having regard to the circumstances of the matter, including the personal circumstances of the Client, to justify work or further work being carried out”.
There is currently no appeal to a court or tribunal in relation to the sufficient benefit test. However, there is a right, set out in the LSC contract, for the person refused legal aid to apply to an independent funding adjudicator for a review of the decision not to grant legal aid. There are no plans to introduce appeals provisions immediately, although subsection (9) would allow for the introduction of provisions for reviews and appeals in the future if it were considered appropriate.
Procedures for review and appeal might, in any event, not be necessary or proportionate in establishing whether all criteria specified in regulations under subsection (5)(b) were met. For example, if a criterion was that the provider had to hold a contract to provide such services, then an appeal would not be necessary to establish whether a provider held a contract. The Government therefore believe that a duty to secure such arrangements is unnecessary and heavy-handed. In such circumstances, a right of appeal to a body other than a court might be more appropriate. The Government believe it is appropriate to have the flexibility to make regulations that could provide for either a review or an appeal, or a combination of both, and that a review or appeal might be made to a body other than a court or tribunal.
The noble Lords, Lord Bach and Lord Thomas, raised points concerning Article 6. It is intended that any arrangements made will comply with the ECHR.
On the rather interesting background to previous systems, it was the previous Administration that brought to an end what sounded like a nice little earner for the noble and learned Lord, Lord Woolf, and the noble Lords, Lord Thomas and Lord Carlile.
Lord Phillips of Sudbury
My Lords, this cannot pass. It must be in Hansard that on this occasion, rare though it is, lawyers acted pro bono.
Lord McNally
As I say so often, I am not a lawyer—thank God.
There was a question about how the independent funding adjudicator system is working. Some 11,560 reviews were received in 2010, of which about 3,500 were subsequently appealed to an independent funding adjudicator at a cost of about £18 per case. The total cost of these appeals was just over £63,000, so it appears to be a very cost-effective scheme. I hope that the noble Lord will withdraw his amendment.
Lord Bach
I will withdraw the amendment, of course, but there is a real issue here which goes to the independence issue that we debated in the previous group. We argue that it is not satisfactory for there to be a system in which the LSC, as it were, comes in house and becomes an agency of government, with the old process of reviewing decisions remaining exactly the same. That is because the adjudicators, independent though they may be, are appointed by the ministry, so again there is the problem of the perception of independence. There must be a system of appeal against a legal aid decision.
I am certainly not in the mood to fall out with noble Lords opposite who believe that there is a better system than that of tribunals. They may be right or wrong, but what we agree on is much more important than what distinguishes us: namely, there must be a genuinely independent appeals procedure. Of course we do not want it to be expensive or long-winded, but there must be one in order that the perception of independence is there. I am afraid that the Government have not yet got the point that the system proposed in the Bill is not satisfactory for those who are refused legal aid and go to the adjudicator who has been appointed by the Ministry and are refused again.
For the perception of independence, it would be so much simpler and easier for there to be either a chamber of the tribunal or another totally independent body that will decide these issues. There are not that many of them each year; it would not cost the state a great deal of money. However, the principle of being able to appeal against a decision made in this case by a civil servant who has been appointed by the Lord Chancellor is very important. I beg leave to withdraw the amendment, but we may come back to this on Report. If we are coming back to the earlier independence issue, we shall have to come back to this one as well.
Lord Thomas of Gresford
Lord Thomas of Gresford
We come to Clause 7, “Civil legal services”. These services,
“include, in particular, advice and assistance in the form of … representation, and … mediation and other forms of dispute resolution”.
My amendment simply inserts “collaborative law” after “mediation”. Noble Lords may ask what it is. I am very grateful to the organisation Resolution for drawing it to my attention, and I am very keen on it.
It is perhaps inevitable in the House of Lords that one goes back over the years. Getting divorced these days is no problem; it is all done on paper. There is no Queen’s Proctor, confession of adultery or anything like that; one just signs a piece of paper. It is the children, the house and the funds that create the difficulty. Collaborative law is different from mediation. In mediation, the parties go in front of a mediator who listens to what they have to say. They may not be represented and may shout at each other. Statistics show that something like 60 per cent of attempts at mediation fail. People who are at each other's throats and ready to kill each other should not be put in proximity to argue in front of a mediator; it is not easy for the mediator or for everybody else.
The collaborative family law process is a relatively new way of dealing with family disputes. Each party appoints their own lawyer. However, instead of the lawyers conducting negotiations by letter or phone, they meet to work things out face to face. Therefore, each antagonist has a lawyer at their side throughout the process and receives legal advice as they go. The aim of collaborative law meets the Government's aim of resolving family disputes without going to court. Both parties meet their respective lawyers, discuss the different options and processes available and decide to attempt the collaborative process. Then a four-way meeting is set up—the two parties plus their lawyers—and at the first four-way meeting the lawyers make sure that both parties understand that they are making a commitment to work out an agreement without going to court. They all sign an agreement to that effect.
Baroness Butler-Sloss
I am an honorary member of Resolution. I would like the Committee to know that Resolution has extremely high standards in ensuring, if possible, that its clients settle every case which the lawyers deal with. It has a very impressive protocol on how each member of Resolution should behave in family law cases. I entirely agree with the noble Lord, Lord Thomas of Gresford, about the importance of collaborative law. As I understand it, it is the brainchild of Resolution, and Resolution is doing it with a view not to making a lot of money from it but to doing something to help families who otherwise will come before the courts. It is an admirable scheme run by an admirable organisation.
Lord Beecham
My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.
Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.
As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.
I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,
“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.
It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.
The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.
I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.
I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.
Lord Howarth of Newport
My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.
I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.
Lord Phillips of Sudbury
My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.
Lord McNally
My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.
How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.
As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,
“mediation and other forms of dispute resolution”.
The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.
I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.
As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.
Lord Beecham
My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.
Lord Thomas of Gresford
My Lords, I have to confess that I am disappointed with my noble friend’s response and I shall certainly return to this issue on Report. The Government have to appreciate that they are taking family law out of scope, which means that there are going to be couples who are at each other’s throats. There are various ways in which they can resolve their problems. They can say, “He hit me on one occasion. It is domestic abuse, so I want legal aid”. All the fears that have been expressed by the Government of people pushing domestic abuse up the agenda in order to get legal aid and thus making it more difficult to settle will become prevalent.
Here is a system where, on a fixed fee, issues of finance, housing and children can be settled, which is exactly what we as solicitors used to do. We would pick up the phone and talk to the opposing solicitor in order to sort things out without having to go to court. If you do not have a system like this to resolve issues, inevitably it is going to cost more. As I say, there will not necessarily be made-up allegations of abuse, but the little disputes that have occurred in a marriage may perhaps be tarted up just enough to make it possible for legal aid to be involved. You are then into an expensive system. I will therefore return to the matter on Report and I shall continue to advocate this very excellent system. I am pleased to see that the noble and learned Baroness, Lady Butler-Sloss, is involved. So far as I am concerned, the process has been given the seal of approval. For the moment, however, I beg leave to withdraw the amendment.