HL Deb 23 January 1995 vol 560 cc855-7

2.45 p.m.

Lord Boyd-Carpenter

asked Her Majesty's Government:

What plans they have to limit the extent under the legal aid scheme by which, as reportedly stated by the Lord Chancellor in The Times of 4th January 1995, "the money goes rolling out to the lawyers involved in the case".

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, I am presently considering whether the present scheme should be replaced by one operated within a cash limit and based on a system of block contracts with a variety of different suppliers of legal services. I intend to develop this idea further in a Green Paper which I hope to publish in the spring.

Lord Boyd-Carpenter

My Lords, I thank my noble and learned friend for that encouraging Answer. Will he accept my assurance that his words, as quoted in the Starred Question, gave great encouragement to those of us who are very disturbed at the appalling outpouring of public money into legal aid?

The Lord Chancellor

My Lords, I am grateful to my noble friend. In seeking to develop the idea to which I referred, I shall be grateful for any help that any of your Lordships care to tender to me.

Lord Molloy

My Lords, we very much welcome the statement made earlier by the noble and learned Lord to his noble friend Lord Boyd-Carpenter. I congratulate him on what is being done. But is he aware that some people have grave concern that those who appear to be very well off can obtain more legal aid much more easily than those who richly deserve it?

The Lord Chancellor

My Lords, it is certainly a problem that those who appear—I emphasise "appear"—to be well off qualify under the rules for legal aid. I have sought to address that particular problem in a paper that I published earlier, taking up various suggestions for altering the rules, so that when they are applied to such people the result may differ from that under the present system. In addition to the propositions put to me, I have incorporated some other suggestions which have occurred to us in the paper. The consultation period is proceeding. Again, any proffered help will be very gratefully received.

Lord Irvine of Lairg

My Lords, does the noble and learned Lord agree that legal aid should be available to meet social need in meritorious cases? Does he further agree that, as a matter of principle, legal aid should not be subject to a blind financial cap regardless of merits?

The Lord Chancellor

My Lords, I consider that the legal aid scheme would be better if it were possible for it to respond more readily to priorities than does the present scheme. The quotation in the Starred Question was in reply to a question to me about the present scheme and my difficulty in assigning priorities once an entitlement had been established. In the proposals that I am considering, I have no intention of imposing a blind cap. The idea would be to allot a sum of money with priorities as to how that sum of money should be spent. I hope that it may be possible to include in the scheme a degree of local priority as well as national priority.

Lord Barnett

My Lords, as one who does not object in principle to cash limits—indeed, I was responsible for introducing them widely some time ago—can the noble and learned Lord explain how the system would work in the case of legal aid if, for example, earlier in the year the total amount of money allocated under cash limits was utilised? Would it mean that towards the end of the year many well-deserved cases would be refused the money?

The Lord Chancellor

My Lords, I feel sure that the noble Lord met this argument when, in his earlier days, he proposed an extension of the cash limited system to other areas that previously it did not cover. I have no doubt that he disposed of it very well by pointing out that, where somebody has a given sum of money to apply over a period such as a year, wise planning requires that it is not all spent at the beginning of the year but is spread in such a way that it will be used evenly. The success of the cash limited schemes introduced by the noble Lord show that his arguments in that connection were correct.

Lord Hailsham of Saint Marylebone

My Lords, when my noble and learned friend is considering priorities, will he confirm my belief that certain types of litigation—for example, defamation cases—are still excluded from legal aid? As a matter of national priorities, is it not possible to devise a system whereby certain types of litigation have a lower priority than others?

The Lord Chancellor

My Lords, that is a possibility under a scheme that I have in mind. It would be a welcome addition with a more flexible type of allocation of priority than exists at the moment. As my noble and learned friend says, defamation is and always has been excluded. It is a rigorous type of priority in relation to defamation, but it is more difficult under the present scheme to have any kind of gradation of priorities between not allowing a case at all and allowing it in fully. There is also scope for regional and local differentiation in priorities.

Lord Annan

My Lords, can the noble and learned Lord consider another matter? I refer not only to the question of who is entitled to legal aid, but also to the actual cost of justice. Will the noble and learned Lord consider whether refreshers are a natural and entirely admirable way of payment for the fees of barristers? If so, will he consider whether there might be refreshers for some of us who attend the House of Lords?

The Lord Chancellor

My Lords, I believe that your Lordships' arrangements depend, among other things, upon a subsistence rate which varies according to the time for which your Lordships are present. That is the underlying principle of the refresher. But the system of fees is also a matter that I want to consider in relation to this proposal. The Bar Council has proposed for some time—I am endeavouring to implement the principles of it—a graduated fee system which would make it easier to make arrangements along the lines that I am proposing if we go down this road.

Lord Wigoder

My Lords, just to put the record straight, is not the obsolete term "refresher" simply another way of talking about the daily rate?

The Lord Chancellor

My Lords, I thought that that was the substance of what I was trying to say. It is a matter of opinion what one calls it. In this House we call it a subsistence allowance on a daily basis. But the time a case takes is one factor that is relevant to the amount the person taking the case should be paid. Precisely how that is determined is a matter for judgment in relation to specific classes of case.