Legal Advice and Assistance (Scope) (Amendment) (No. 2) Regulations 1997 (Hansard, 10 July 1997)

§ The Lord Chancellor
rose to move, That the draft regulations laid before the House on 19th June be approved [4th Report from the Joint Committee].
The noble and learned Lord said: My Lords, these draft regulations are technical. The provision of traditional Green Form advice and assistance is governed by Part III of the Legal Aid Act 1988. This lays down financial conditions for clients and limits the amount of work that solicitors can do. Part II of the Act gives the Legal Aid Board a general power to make contracts. It is Section 4(2) of the Act which gives the board power, to enter into any contract". 796 That power applies to contracting for legal aid services, as well as other forms of contracts. The board can use it to make contracts for services that are either subject to the conditions in Part III or independent of them. The board is about to embark upon pilot projects contracting for legal aid advice and assistance with solicitors' firms and a range of advice agencies, including some that employ solicitors. For these pilots, the board wants to be flexible and to experiment with different contractual arrangements. Some of these would not be possible if the conditions and limits in Part III applied. For example, as I have mentioned, Part III limits the amount of advice which solicitors may give to clients. The board wishes this limit to be lifted for the pilot. The idea is to enable fixed-price contracts under which providers can devote the time that is thought necessary for each case, subject to the resources available. That will enable the advice that people receive to be better tailored to their needs.
The purpose of the regulations, then, is to make it clear, for the avoidance of any doubt, that the pilot contracts are outside Part III. That will ensure that the Legal Aid Board has the flexibility that it needs.
Perhaps I may now explain what these regulations will mean in practice. They have nothing to do with legal aid as usually understood; that is, the legal aid which people receive to help pay for court proceedings. What they are about is the way that people receive basic help with their problems—what has traditionally been called legal advice and assistance. This is an area that has received less attention and, particularly in relation to social welfare law, has been rather neglected. But this Government believe strongly in its importance for giving people the help that they need with legal problems at an early stage. Early help can lead to early settlement.
Under the existing legal aid scheme, any lawyer can give people legal advice and assistance, under what is known as the Green Form scheme. Once the solicitor has done the work, a bill is sent to the Legal Aid Board, which then pays it. There are, however, financial conditions and other limitations which restrict who can receive advice and assistance and what type and amount of work the board will pay for.
The Green Form is a service for the poor—that is, broadly for those at income support levels. Those who are left with more than £77 a week from their earnings, after deducting certain allowances, do not qualify. Generally, the maximum amount of help that they can receive is three hours for matrimonial cases, or two hours for all other classes of work without restriction. In broad terms, that equates to around £90 in value. In all categories the provider can go beyond the two or three-hour time limit, either by permission of the Legal Aid Board or, where a firm is under contract to the board to provide quality-assured services—a legal aid franchisee—it can authorise the extension itself, using powers devolved from the board. An example might be a housing case where a solicitor identifies a housing matter that he or she believes might be resolved through negotiation. Last year there were 1.6 million Green Form acts of assistance—a high volume of advice provision at a low unit cost.
797 An experiment has been tried in which the Legal Aid Board has contracted in advance with some voluntary non-solicitor advice agencies, such as citizens advice bureaux and advice centres, to provide advice and assistance. These are new types of provider who are not currently part of the legal aid scheme, but who we believe can offer a new and useful range of services. The work they carry out under the contracts is in the areas of social welfare law, immigration, and employment—these being the areas in which they hold themselves out as competent. If their competence were extended into other areas, so also the ambit of these contracts could be extended. Social welfare includes advice on debt problems, housing, and benefits. But agencies cannot, at present, offer services under their contracts in family or criminal work. This, however, merely reflects the competence that they currently demonstrate.
In the experiment, advice agencies receive approximately £36,000 per annum from the legal aid fund for each full-time advice worker they employ on legal aid work. Legal aid funding is available only for services provided for people who are at the income levels that I have already described. The sum agencies receive is based on a negotiated formula and buys 1,100 hours of "direct" caseworker time spent working on cases, which equates to 25 hours a week. These arrangements give an hourly rate about £9 or £10 lower than that paid to solicitors.
The initial contract for the agencies is for one year. Then, if they meet the franchise standard, they qualify after that year for an additional three-year franchise contract. The requirement that each agency involved in the pilot meets the standards of the board's franchising scheme means that their service is quality assured. There are additional standards placed upon those who supervise work. The agencies' contracts include strict monitoring provisions to ensure that these quality standards are maintained.
That experiment fitted in with an intention eventually to provide all legal aid and legal advice and assistance through contracts with solicitors and other providers. Those contracts would fix in advance how much work the service providers would do, and how much they would be paid for it. That broad contractual approach to all legal aid and advice and assistance allows for contracts at fixed and agreed prices. Better planning and control of legal aid costs result. That contractual approach is now being considered as part of the review of civil justice and legal aid that I have asked Sir Peter Middleton to conduct.
One of Sir Peter's main objectives is how to achieve better control over legal aid expenditure. This Government are committed to staying within existing spending ceilings for the next two years. Any extra money for legal aid could thus only be secured at the expense of another area of public spending. The plain fact is that there is no new money for the legal aid scheme—rather it needs to deliver better value for existing money.
I welcome these Legal Aid Board initiatives. They contribute to the goal of improving value for money. I want to ensure that, while Sir Peter Middleton is 798 undertaking his review, we do not lose the momentum built up in piloting contracts for advice and assistance. What the board and I now want to do is conduct further pilots with the voluntary sector and with solicitors.
The new pilots will include solicitors' firms and a greater range and number of advice agencies, including some that employ solicitors (such as law centres). There will then be a wider range of help available. The advice agencies will be able to do the same work as under the initial experiment; solicitors' firms will be able to offer any advice and assistance under the pilot contracts except family and criminal. While the board has not yet settled exactly which agencies and solicitors' offices will be taking part in these new pilots, there has been great interest from providers in both the pilots. For example, the solicitors' pilot was originally intended to include 50 offices but the board received expressions of interest from about 850. The board narrowed this down and is currently engaged in discussions with about 140 offices as to whether they wish to participate.
So as I have said, I am keen to press ahead with these pilots. Doing so means that, were Ito decide, after receiving Sir Peter Middleton's report, that contracting for fixed agreed prices should continue, I will be in a position quickly to make a decision on a national contracting scheme for advice and assistance. I commend this instrument to the House and beg to move.
Moved, That the draft regulations laid before the House on 19th June be approved [4th Report from the Joint Committee].—(The Lord Chancellor.)

§ Lord Mishcon
My Lords, the legal profession will, I am sure, be most indebted to the noble and learned Lord for that clear exposition of what are difficult regulations to follow unless one has the benefit of the explanation that the noble and learned Lord has given.

§ Lord Kingsland
My Lords, this measure is a creative, if modest, step in seeking to grapple with what is likely to prove the biggest headache of the noble and learned Lord's term of office: to improve the provision of legal services to the needy without increasing public expenditure.
As I understand it, what is proposed amounts to the legal equivalent of preventive medicine. By making legal advice more user friendly and available in areas in which the underprivileged often fall foul of the law—social welfare, immigration and employment—we shall keep people out of the courts. That will save money on expensive litigation and target those in need more accurately—serving the interests of economy and justice simultaneously.
There are those in the legal profession who see this as the early stage of the slippery slope which can end only in the adoption of something like the public defender system in the US. I do not know whether the noble and learned Lord has any preconceptions about that system. I do know that he has established a committee under the chairmanship of Sir Peter Middleton which will take a close look at the desirability of expanding the contractual provision of legal aid services. We eagerly await its report. The 799 wider issues can he addressed then. I trust that the House will have an early opportunity to debate the findings of that report.
I note also that the noble and learned Lord has delayed a statement of his intentions regarding the implementation of the Woolf provisions until after Sir Peter has reported. In my humble submission, that must be right. Decisions about the provision of public funds to finance such services cannot be made without looking at the costs of court and interlocutory proceedings to see whether or not some savings can be made there. To do otherwise would be rather like the Chancellor of the Exchequer preparing a taxation policy with no regard to public expenditure.

§ The Lord Chancellor
My Lords, I appreciate the welcome given to these regulations from the Opposition Benches for the limited effect that they have. I appreciate also the recognition from those Benches of the good reasons why I invited Sir Peter Middleton to conduct his review. He is reviewing for me the Woolf proposals and legal aid together. I have always maintained that reform of legal aid and the recommendations of the noble and learned Lord, Lord Woolf, should go together. They should not be evaluated separately. The reform of legal aid is not, as has been recognised, a distinct issue, hermetically sealed from the reforms of the civil justice system itself.
A major defect in the approach of our predecessors was to address each separately. I therefore welcome what has now been said from the Opposition Benches. That is precisely why Sir Peter is reviewing them both together for me. I expect him to report by the end of September. I hope and plan to make major decisions in October.