Church of England (Legal Aid) Measure

HL Deb 15 July 1994 vol 556 cc2137-41

2.19 p.m.

The Lord Bishop of London rose to move, That this House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.

The right reverend Prelate said: My Lords, this is a modest Measure which sets out to ensure that the Church's legal aid system works as effectively as possible. It gave rise to no controversy in the General Synod and I hope that it will commend itself to your Lordships.

The Church's legal aid fund exists to help with the legal costs of some of those who become involved in proceedings in the Church courts. The cost of that is borne in one way or another by parishes throughout the country and the fund itself is administered by a legal aid commission whose members are drawn from lay people, clergy and the bishops, including a number of professional lawyers who give their time free of charge. Like the state's legal aid system the Church's legal add fund has been faced with a major increase in costs at a time when, as your Lordships know, the Church is under great financial pressure. For that reason the commission conducted a thorough review of the Church's legal aid system and recommended a number of changes which the General Synod accepted and some of which appear in the Measure.

Your Lordships may be surprised that I describe what seems to be a lengthy Measure as modest. That is because most of it is no more than a consolidation of a number of existing pieces of legislation. I am told that the section on ecclesiastical law is one of the bulkiest in the statute book and the Church is anxious to do what it can to keep that section of the statute law in good order and as easy to use as possible. That means that much of the Measure is not new.

For example, the ecclesiastical committee initially expressed some anxiety over the provision that when the legal aid commission is considering the financial position of an applicant for legal aid and deciding whether he or she could afford to pay his or her own legal costs without help from the legal aid fund, the resources of that person's spouse should also be taken into account. That appeared in the previous Measure on the subject and does not mean that the spouse's capital and income are automatically added to the applicant's, as in some cases under the state's legal aid system. It means only that proper consideration should be given to them. Indeed, the Measure now before your Lordships increases the legal aid commission's discretion in this and other matters by requiring it to take all the circumstances of a case into account in reaching its decision. That reassured the ecclesiastical committee, and I hope it will also reassure your Lordships.

The Church has never been able to provide legal aid for every kind of case which comes before Church courts and tribunals. The primary purpose of the Church's legal aid fund is to provide help, in suitable cases, with the legal costs of clergy and some other ministers who are faced with disciplinary proceedings or other proceedings which may involve the loss of their office, their livelihood and the opportunity to exercise their ministry. In many cases of this kind it would not be right to expect clergy and other ministers to seek funds for their legal costs locally, from their own parishes or diocese, because that is often where the problems have arisen. There needs to be a central fund to which they can apply. The legal aid commission recommended that the limited resources which are available to the fund should be concentrated on that group of people, which means that some of those whom the commission previously had a discretion to help—I would stress that it was a discretion and not a duty—will now need to look to more local sources of Church funds. However, that will have the advantage that in considering their requests the local situation and local needs and resources can be taken into account. Here again, the ecclesiastical committee looked very carefully at what was proposed and was satisfied that it was expedient.

Finally, the Measure contains a number of new provisions to help the Synod's legal aid commission to carry out its duties as efficiently and cost effectively as possible, and to help ensure that the Church obtains the best possible value for money which it spends on legal aid. I hope that your Lordships will wish to support the Church in this, and will therefore support the Motion in my name. I beg to move.

Moved, That the House do direct that, in accordance with the Church of England Assembly (Powers) Act 1919, the Measure be presented to Her Majesty for the Royal Assent.—(The Lord Bishop of London.)

Lord Graham of Edmonton

My Lords, again we on these Benches have no intention of inhibiting the passage of the Measure. We recognise that they are matters of deep concern within the Synod and quite clearly they are matters which your Lordships wish to be brought before the House and given approval.

When I read the documentation, paragraph 4 on page 4 seemed to me an eminently good starting point. It states: The 1992 report was prompted by a particular case, involving a clergyman against whom disciplinary proceedings were taken under the Ecclesiastical Jurisdiction Measure 1963, which resulted in heavy expenditure, both from the Fund and from other sources, as well as giving rise to unfavourable publicity for the Church". I can well understand that from time to time there is a general feeling that one needs to bring something up to date and then an incident occurs which is a catalyst. Paragraph 6 encapsulates the raison d'être: to keep the cost of ecclesiastical legal aid to the minimum consistent with the purpose of the system, to allow the Commission to function as effectively and economically as possible, and to provide the Church with the best possible value for the money spent from the Fund". We on these Benches are well aware of the high cost of litigation and of the need to ameliorate the cost for people who stumble into its consequences. Any system which helps to equalise the costs is very good.

Paragraph 7(a) is very important. It states that the Measure is to be amended, to enhance the Commission's existing discretion in dealing with applications for legal aid". That is very good indeed because one must be conscious of the amounts of money available and try to weigh, very often imprecisely, the extent to which different causes and cases are entitled to call upon the moneys that are available.

We on these Benches wish the Measure every success, again bearing in mind that the matter has gone through what we would call the democratic process: at the Synod; 16 Bishops for and none against; 89 clergy for and none against; 106 laity for and none against. That is an even better record than the one on the earlier Measure.

Lord Cocks of Hartcliffe

My Lords, I should like to welcome the remarks of the right reverend Prelate and of my noble friend and commend the order to the House. I hope that it will be noticed in wider circles. I welcome the remarks about whether people are able to contribute to their own legal costs, because the whole nation has recently been appalled by the case of the Iraqi businessman who has already had some £4 million from the legal aid fund yet he is an extremely wealthy man. I believe that there is far more public expense to come. So I think that the Church is a model here and I hope that the appropriate authorities in the Law Society, the Bar Council and the Lord Chancellor's Department will take note of that.

My only other point is to warn the Church, with the greatest respect, to be careful. At the bottom of page 8 the Appendix to the Comments and Explanations states: The Commission should be given a much wider discretion in fixing solicitors' and barristers' remuneration on the taxation of costs of legally aided proceedings". I have spoken in your Lordships' House of late about the quite appalling escalation of fees—of counsel particularly—over the past few years which are quite unjustified by any claim on the rate of inflation. I warn the Church to be very careful because I believe that this concern is growing to such an extent that the Bar Council may be forced into a position of having to put its own house in order.

Paragraph 4 refers to the very limited availability of Queen's Counsel. With due respect, we should take that with a pinch of salt. To the best of my knowledge, provided that the fee is high enough and the refreshers consistent enough, counsel are always very readily available.

As a layman, I hope that I am not impertinent in suggesting that the Church should have a good look at this. There is a large enough problem with ecclesiastical finance these days without having it compounded by the greed of the legal profession. I hope that the right reverend Prelate will accept these remarks in the spirit in which they are proffered.

The Lord Bishop of London

My Lords, I am grateful to your Lordships for the comments on this Measure. I should like to confirm that it was as a result of a particular case, and the very extraordinary expenditure incurred with it, that gave rise to a wider ranging review and the present proposals in the hope that they will be cost effective and efficient. That picks up a further point made by noble Lords. One of the advantages of this Measure is that any applicant will need to get a certificate for legal aid. The applicant will have to apply to the commission at the very earliest stage rather than embarking on proceedings and then presenting the commission with a Bill at the end. So the commission itself keeps a check on the proceedings as they go through in the hope, as I say, that the Church will not be faced with undue, runaway costs. It is also hoped that there can be some kind of dialogue and communication kept between the applicant and the commission throughout any proceedings.

On Question, Motion agreed to.