Mr. Gordon Foxley: Legal Aid (Hansard, 4 May 1995)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, the total amount of criminal legal aid paid so far to lawyers acting on behalf of Mr. Foxley is £160,228, including value added tax. No money has as yet been paid from the legal aid fund in respect of the civil proceedings between the Ministry of Defence and Mr. Foxley.

§ Lord Boyd-Carpenter
My Lords, I thank my noble and learned friend for that interesting Answer. Can he say whether payments of that size to those indulging in litigation at a cost to the taxpayer are common, or is this a rare example?

§ The Lord Chancellor
My Lords, first, one must remember that this was a criminal case brought against Mr. Foxley by the prosecuting authorities. Compared with recent examples which I have given in Answers to my noble friend Lord Boyd-Carpenter, the cost of this one is comparatively small. I inquired into the detail of how that could possibly come about. The answer was that the case was only over eight days, some of which were days when it was not possible for the court to sit. On one occasion, the trial had to be adjourned because of ill-health on the part of a juror. On another day, it was because of ill-health on the part of the defendant. So the total amount of work spread over those days was not as large as it might seem. However, the amounts are ultimately subject to taxation by the taxing masters of the court.

§ Lord Williams of Mostyn
My Lords, does the noble and learned Lord agree that there is significant public concern about moneys—however modest in the present case—being donated to people who are extremely wealthy, apart from being extremely dishonest and corrupt? Will the new regime which the noble and learned Lord envisages ensure that the likes of Mr. Foxley will not receive public money on this scale in the future? Can the noble and learned Lord assure the House that every effort will be made to recover from this man every single penny which he has received from public funds?

§ The Lord Chancellor
My Lords, there is no question of money having been donated from public funds to Mr. Foxley, or anyone else, in respect of legal aid. Mr. Foxley faced criminal charges before a criminal court and in accordance with the primary legislation approved by this House, and the secondary legislation made under that law, his means are assessed by the court. Legal aid follows on conditions related to that assessment if the interest of justice so requires. Subject to any changes that may be intimated in due course, that is the system at present and nothing that I have suggested would change it.
1476 I have recently made suggestions for bringing into account, for example, the equity value in a home which is more than £100,000. I made a change of that kind. However, the other aspect I have to emphasise is this. The Lord Chancellor and his officials are precluded from inquiring into the financial circumstances disclosed to the court of the legal aid authorities by the confidentiality provisions of the legal aid legislation. I am quite unable to find out, therefore, and it would not be proper for me to inquire into, the detailed circumstances of particular people. However, from what I have seen I have the impression that there may be some who are less than frank to the legal aid authorities in the detail of their finances. I have proposed, and I am pursuing, the setting up of a special unit to investigate the finances of such people. The difficulty is to give criteria in advance by which such a class of person can be determined. It is a difficult issue which I seek to address and I am sure that your Lordships wish to support me in that address.

§ Lord Clark of Kempston
My Lords, does my noble and learned friend agree that the cost to the taxpayer of legal aid is in some cases out of control? A member of a rich family, on paper, may not have many resources, but his family does. If there is some laxity in the instructions to the independent Legal Aid Board, why do we not change the rules?

§ The Lord Chancellor
My Lords, my noble friend will be aware that I have intimated that I propose to change the rules to give a discretion to the authorities with responsibility for adjudicating on the financial entitlement of people to take account of benefits supplied by members of their families or friends where those benefits appear to be of assistance to the applicant. At present, the basis is strict ownership and entitlement. I have sought to open a discretion. Some commentators have suggested that it will be difficult to apply. However, I believe that it is well worth making the effort for such application.

§ Lord Avebury
My Lords, regarding the information available to the authorities which have to determine the eligibility for legal aid, will the noble and learned Lord consider the precedent of the Drug Trafficking Offences Act in which the assessment is made by the court on the basis of the proceeds of the crimes that the person has committed rather than the actual value of assets available to him?

§ The Lord Chancellor
My Lords, I am aware in general terms of the provisions relating to the proceeds of drug trafficking. Those provisions are applied after a conviction. Legal aid is decided upon at the stage in criminal matters when a person has the presumption of innocence in his or her favour. Therefore, a degree of discrimination is required to apply suitable procedures after conviction.

§ Lord Elton
My Lords, is there now, or does my noble and learned friend intend there to be in the future, 1477 an offence of seeking to defraud the taxpayer by concealing resources, thus qualifying for substantial amounts of legal aid? If so, what is the penalty?

§ The Lord Chancellor
My Lords, yes, there is indeed such provision. There are, as usual, difficulties in bringing home to people what is said. It may be thought that people have money. It may be thought that they have resources. It may be quite another thing to prove such factors to the level of the criminal standard of proof.

§ Lord Boyd-Carpenter
My Lords, can my noble and learned friend say whether there have been any prosecutions of people who have concealed their means and have drawn large sums by way of legal aid at the taxpayers' expense?

§ The Lord Chancellor
My Lords, speaking from memory, I am not aware that people have been successfully prosecuted on that account for large sums. I perhaps need to refresh my memory; but I know that there are provisions for such proceedings. However, as I pointed out, the difficulty of proof is usually the obstacle to proceedings.