§ 7.19 p.m.
§ Lord Bach
rose to move, That the draft regulations laid before the House on 1st December be approved [3rd Report from the Joint Committee].
The noble Lord said: My Lords, these regulations are necessary to underpin contracts that will replace a substantial part of the existing legal aid scheme with effect from 1st January 2000. The Legal Aid Board has announced awards of around 5,000 general civil contracts to solicitors' firms and over 330 contracts to not-for-profit agencies. In future those will be the exclusive method of delivering legal aid for the categories of work that they cover. Depending on the expertise of each contractor, contracts can cover all advice and assistance in civil matters and representation in family and immigration cases.
Contracting is central to the Government's plans to improve quality, to target priority needs and to control the cost of publicly funded legal services. All contracts will go to providers of proven quality and expertise. To win a contract, a provider has to have passed the Legal Aid Board's quality franchise audit on a full or provisional basis. Provisional franchisees have to meet the full standard within one year.
In order to control cost, each solicitor's contract specifies the number of new advice and assistance cases that the provider is authorised to start next year. That number could be increased during the year to meet unexpected demand. The Legal Aid Board has retained a reserve for that purpose in each category. On the other hand, the number can be reduced if a provider's average case costs increase to ensure that the total cost of the contract remains within budget, or if it is clear that the provider will not start the number of cases allowed in the contract.
81 The effect of the regulations will be to amend the Legal Advice and Assistance (Scope) Regulations 1989 by excluding much of Part III of the Legal Aid Act 1988. Part III currently covers all advice and assistance, including assistance by way of representation.
From 1st January next year, legally aided advice and assistance in civil matters will be provided through the Legal Aid Board's civil general contracts. Those contracts will be governed by Part II of the 1988 Act until the Access to Justice Act 1999 takes effect on 1st April 2000. Part II is the free-standing power for the Legal Aid Board to make contracts to secure advice and assistance, and representation, provided that the Lord Chancellor authorises them to do so by direction. The entitlement to funding and protection from costs available under the other parts of the Act do not apply to services procured under Part II.
Section 8(3) of the 1988 Act provides for regulations to exclude from Part III, advice and assistance of all descriptions or of any prescribed description. These regulations, with a few exceptions, will exclude most civil matters from Part III. The purpose of that is to ensure that only those with contracts under Part II will be able to provide advice and assistance in accordance with their contracts.
The noble Lord, Lord Goodhart, seeks to amend the Motion to approve the regulations so that it calls on the Government to defer implementation until the Access to Justice Act is brought into force. I shall not dwell on the technical validity of that. As amended, the Motion would still approve regulations which state on their face that they come into force on 1st January next year. However, the noble Lord is really asking—no doubt in a few moments he will tell us—why the contracts and related changes are being introduced under the Legal Aid Act, rather than waiting until the Access to Justice Act is brought into force.
The timetable for the contracting process, culminating on 1st January next year, was set and published by the Legal Aid Board well before the Access to Justice Act was passed. That process has involved extensive consultation at every stage and it has required a great deal of work on the part of thousands of solicitors' firms and hundreds of advice agencies in the voluntary sector in order to achieve the franchise standards and apply for contracts. The firms and agencies which undertook that work and have been awarded a contract have every right to expect those contracts to take effect on 1st January, and that they will be the exclusive means of providing legally-aided advice and assistance.
I shall deal as shortly as I can with the exceptions. First, I turn to assistance by way of representation, or ABWOR. The regulations leave most ABWOR unaffected, so it will continue to be provided under Part III of the 1988 Act; ABWOR in family proceedings is retained because it is necessary to ensure that costs protection under Section 12 of the Act continues for such cases. Nevertheless, that work will be restricted to holders of a family contract by virtue of the Prescribed Panel (Amendment) Regulations to 82 which I shall turn a little later. Those regulations also apply to representation in family and immigration cases which will be provided by contracts under Part IV of the 1988 Act.
Most other ABWOR relates to criminal matters, or to matters which, although technically civil, are essentially criminal in nature; for example, cases involving a risk of imprisonment for failure to obey a court order. Those cases will be funded as part of the Criminal Defence Service from October next year. Meanwhile legal aid remains available.
Two categories of ABWOR are excluded from Part III by Regulation 7: ABWOR for representation before the Mental Health Review Tribunals is excluded because in future that will be dealt with under the contracts under Part II of the Act; ABWOR for proceedings under the Fire Precautions Act is excluded altogether. Funding for those cases, which concern the regulation of commercial premises, is not justified under a scheme intended to help individuals.
The regulations also provide for some green form advice and assistance to remain within the scope of Part III—that is, advice and assistance relating to criminal matters, clinical negligence and personal injury.
Criminal advice and assistance will be preserved until the Criminal Defence Service comes into effect in October 2000. It is available for individuals who are arrested and held in custody or who are involved in criminal investigations or proceedings. The regulations set out a list of proceedings which are defined as criminal proceedings for that purpose. Again, that includes matters which are technically civil, but which will be funded by the Criminal Defence Service in due course; for example, proceedings for anti-social behaviour orders and judicial reviews arising out of criminal proceedings.
Advice and assistance will also continue to be available under Part III for clinical negligence cases. It will continue to be restricted to franchised solicitors under the Legal Aid (Prescribed Panels) Regulations 1999 until 1st April next year when the Access to Justice Act takes effect. At that stage, the existing arrangements will be incorporated in the general civil contracts held by relevant franchisees.
Similarly, personal injury work is excluded from the scope of the contracting regime introduced on 1st January next year. Until 31st March, any solicitor will be able to take on personal injury cases. On 1st April, the contract specifications will be amended to cover advice, assistance and representation in residual personal injury cases; that is to say, cases which are not excluded from the scope of funding by Schedule 2 to the Access to Justice Act 1999 because they do not relate to injury caused negligently. Those are, for example, cases where the client alleges that he was assaulted by the police while in custody. Personal injury franchisees with contracts will also be able to apply for additional funding in support of a conditional fee agreement in exceptionally expensive personal injury cases. The Lord Chancellor will issue a 83 direction allowing those cases, and cases that raise issues of wider public interest, to remain within the scope of public funding.
Noble Lords will notice that Regulation 5 refers, among other things, to the making of wills. The Lord Chancellor intends to make a direction authorising funding under the 1999 Act to assist vulnerable clients to make a will. That will cover broadly the same categories for which legal aid funding is available now. The Legal Aid Board's contracts will provide for that from January 2000.
Contracting will provide a guarantee of quality of service; help us to target priorities; and promote value for money. The regulations before us today help to underpin the contracting process.
We are planning to spend a total of £202 million on advice and assistance next year, compared with about £180 million this year. It is important that this public money is spent wisely. Our reforms will be good for the client because they assure him or her of a quality service; good for the taxpayer because they help to control cost and to improve value for money; and good for competent providers as well, for example, because they provide greater certainty about workload and cashflow than the current scheme. I commend the regulations to the House.
§ Moved, That the draft regulations laid before the House on 1st December be approved [3rd Report from the Joint Committee].—(Lord Bach.)
§ 7.30 p.m.
§ Lord Goodhart
rose to move, as an amendment to the above Motion, at end to insert "save that this House calls upon Her Majesty's Government to defer the coming into force of paragraphs 2 to 7 until Section 4 of the Access to Justice Act 1999 has been brought into force".
The noble Lord said: My Lords, the order moved by the noble Lord, Lord Bach, is a major step in dismantling the Legal Aid and Advice Scheme which has served the country well for the past 50 years. As was pointed out, the order does not directly concern legal aid for litigation. It concerns legal advice and assistance, provided under Part III of the Legal Aid Act 1988. It is generally known as the green form scheme.
The green form scheme has meant for many years that someone who cannot afford to pay for his own legal advice can go to any solicitor who does legal aid work. He can walk in at short notice, even perhaps off the street, and receive advice on his legal problems for an hour or so. The green form scheme is usually the first point of contact with the legal profession for ordinary people who have a legal problem or who think that they may have a legal problem. It is essential, in the interests of those people, that advice and assistance should be available as widely as possible. That is particularly true in country districts and in socially deprived urban areas.
84 At present, advice and assistance can be provided, as we have been told, under Part III of the Legal Aid Act 1988, on all matters except conveyancing and the making of wills. There are significant exceptions to the exclusion of the making of wills. However, as the Minister pointed out, we are now on the verge of fundamental changes. It is the intention of the noble and learned Lord the Lord Chancellor to bring the Access to Justice Act into force on 1st April next year. Under that Act, aid, advice and assistance will be funded by the Community Legal Service through contracts with providers. The Legal Aid Act will, in effect, be wholly repealed.
In debates on the Access to Justice Act, we fought hard to keep a wider network of solicitors' firms available to provide publicly funded services for those in need of them. I refer in particular to the great efforts made in those debates by my noble friend Lord Phillips of Sudbury, who will also speak in the short debate on this amendment.
However, we lost that battle. We shall have to accept that the Access to Justice Act or, as I prefer to call it, the restriction of access to justice Act, will come into force. But this order is made under the Legal Aid Act, not the Access to Justice Act. As we have been told, it will have the effect that almost all advice and assistance on civil matters, except for personal injury cases, will be excluded from Part III of the Legal Aid Act in non-criminal cases—that is, personal injuries and clinical negligence. On all other matters, such as housing law, employment law, family law, and social security law, advice and assistance will be available only from solicitors who have a contract with the Legal Aid Board under Part II of the Legal Aid Act.
That will, at a stroke, reduce by a half the number of solicitors able to provide advice and assistance at no cost to the client. It will reduce the number from 10,000 to 5,000 firms. That will inevitably reduce access to justice.
The Law Society believes, as I do, that there is also a serious problem with the timing of the order. As I understand it, contract offers were only sent out on Friday 26th November. That means they will not have reached solicitors until 29th November at the earliest. Those offers have to be accepted by next Wednesday, 15th December. But the timetable means that by 1st January there will be no public information about which firms have contracts. The public will not know where to go and the other advice organisations will not know where to send referrals. In some fields, such as welfare law, the Legal Aid Board has only so far offered contracts for about half the work that will need to be contracted out. That will create uncertainty as to the sources of advice and assistance for weeks, if not months, to come.
The regulations are wrong in principle because they make it harder for people who need legal advice to get it. The order is wrong in timing because the contract system is not yet capable of handling the burdens.
My Motion of amendment is not intended as fatal. The time may come when your Lordships' House will wish to exercise its powers to reject secondary 85 legislation. This is plainly not that occasion. I simply ask the Government to consider deferring the impact of the regulations until the Access to Justice Act comes into force. Then we shall be faced inevitably with different considerations. But I firmly believe that we should not use the powers under the Legal Aid Act as the engine of its own destruction. I beg to move.
§ Moved, as an amendment to the above Motion, at end to insert "save that this House calls upon Her Majesty's Government to defer the coming into force of paragraphs 2 to 7 until Section 4 of the Access to Justice Act 1999 has been brought into force".—(Lord Goodhart )
§ 7.36 p.m.
Lord Phillips, of Sudbury
My Lords, this is a strange debate, coming after a long, hard-fought debate over the measure, the Access to Justice Act, as it now is. I want to avoid going over the old territory because it is passé. I fully accept what the noble Lord, Lord Bach, said in opening this short debate: namely, that the deed is done and we must now make the best of it. My comments are meant in that spirit, although inevitably they will be critical. However, I hope they will be critical towards a better implementation of the massive amount still to be done under the Access to Justice Act. It is solely with that in mind that I wish to speak.
First, one must accept that there is something approaching bureaucratic mayhem in the legal aid world at the moment. The blue sky reforms which the Government pushed through—again I need not elaborate on how ill-advised we thought many of them were, however well-intentioned—have created a monster of bureaucracy. I urge the Minister to take on board that the future steps in implementation of the Act should, so far as possible, reduce the amount of bureaucracy.
Perhaps I may wave before the House this 270-page document called: General Civil Contract (Solicitors). It is merely the handbook for those who seek a franchise. It is stuffed with systems, regulations, impenetrable gobbledegook. It has 90 definitions before one can start reading the wretched book. That may seem good and dandy to those who believe that solicitors are, to a man and woman, a load of crooks wishing to rip off the system. However, in reality it is a huge impediment, particularly to the small and smaller firms which the Government should be most concerned to help. It is those small and smaller firms which are often closest to their clients, have the lowest overheads, are willing to take the rough with the smooth, understand the social circumstances with which they are trying to deal, and often have the energy and initiative which is not always present in more mature firms.
One must also have regard to the fact that the scheme is extremely expensive by reason of bureaucracy. I have talked to a number of firms which reckon that the additional bureaucracy created since the Act came into effect and in preparation for it have perhaps put 10 per cent on the overheads of providing legal aid. That money must come from somewhere or they will simply withdraw.
86 My noble friend Lord Goodhart mentioned accessibility. Again, I know that it is a deed now done—that is to say, putting the green form scheme, the old legal advice and assistance scheme, exclusively into the hands of those who have contracts— but, if the Government cannot review that decision because it has only just been taken, I urge them at least to have regard to its consequences in other areas of work.
As we have heard, something like half the firms that were doing legal aid a year ago have now dropped out. Admittedly, in many, if not most, cases they are firms which did a small amount of legal aid. But, nonetheless, we are talking about 5,000 offices spread over all parts of the country that were accessible to people in their high streets and able to provide some cheap, immediate and first-class legal aid.
We are now seeing not only a severe reduction in geographical access but also an internal blockage within the firms with the general civil contracts (which, therefore, retain the right to do the old green-form work). That is because one of the rules of the contracts states that there should be an authorisation process, which, I am told—and I know—is actually getting in the way of people giving advice to those who need it, when they need it. In other words, unless you can find an authorised partner ready and available to consider the particular item of work needed for the client, it cannot properly be done. I need hardly say that most solicitors are extremely busy, either out of the office or involved in engagements within it. Clients will not come into a solicitors' office and hang around for an uncertain time waiting in case a solicitor may come back and be able to give the necessary authorisation. So we have that problem.
As I indicated, we also have a problem with regard to small and smaller firms. Perhaps I may make reference to one particular case, which is the subject of a judicial review claim against the Legal Aid Board. It is no problem to that litigation that I mention the facts involved. Mackintosh Duncan was a firm established only last summer specifically to deal with legal aid in the fields of mental health, community care, health and human rights law. Two young solicitors with a great deal of experience came together specifically to undertake this sort of work. But what did they find? They found that they were not even asked to apply for a franchise.
Perhaps I may quote from one of the affidavits in the case that has been sent to me:Mackintosh Duncan is bringing these proceedings as a result of severe concern that the scheme as currently envisaged will have devastating results for the most vulnerable people in society who are most in need of quality legal advice and representation".The affidavit continues to outline the setting up of the firm on 1st July 1999, and I should like to refer to one more paragraph in the affidavit because, as I apprehend it—I have spoken to various organisations and firms—this is a general state of affairs:The current confusion among practitioners has been caused by the enormous amount of documentation produced by the [Legal Aid Board] within an unrealistically short time period, the failure of the [Legal Aid Board] to provide clear and consistent information and publish figures relating to the allocation of 87 funding and the basis for such allocations, and ultimately the [Legal Aid Board's] failure to properly take into account the severe concerns raised by the profession … [has resulted in] a rigid. unworkable and wholly unrealistic regime which is due to be imposed within the next three weeks".I do not need to tell the House that that is a particular point of view and one held by someone currently suing the Legal Aid Board. But, nonetheless, I give it as an example to noble Lords because I think that that will be found to be a general view among legal aid practitioners.
I conclude by saying that we must, of course, "suck it and see". However, I really hope that the Government will be prepared, if necessary, to go back on parts of the scheme as currently envisaged. I am delighted to see that they are already not talking, as they were not long ago, about introducing a block contracting system.
I suggest that a better relationship with the profession, particularly with the Law Society, would be a very good start towards improving this dramatic revolution in legal aid. I urge the Government that that relationship should be one of a willingness to listen; indeed, more than has been the case in the past. Although I have these strictures, I sincerely hope that what we see over the next months and years will make my fears and those of my noble friends on these Benches seem unnecessary and ill-conceived.
§ Lord Hylton
My Lords, as I listened to this debate it occurred to me that these regulations have a close connection with the situation of asylum seekers in this country and their need for legal advice and legal aid. As the Government's dispersal policy develops, will the Minister consult with his colleagues in the Home Office to try to ensure that there are qualified and recognised firms capable of giving legal advice in the specialised area of asylum and immigration law so that people who need such assistance can have access to it?
§ Lord Kingsland
My Lords, as the noble Lord the Minister knows, the Opposition supported the views expressed by the noble Lord, Lord Goodhart, throughout the various stages in your Lordships' House of the Access to Justice Bill. Sadly, I have to agree with the noble Lord, Lord Goodhart, when he says that that is a battle valiantly fought but now lost. We have to accept the fact that the principles advanced by the Government during the course of the proceedings on that Bill now prevail.
However, it is perfectly legitimate for the noble Lord, Lord Goodhart—and, indeed, the Opposition—to ask the Government to verify every stage of the implementation of the new legislation against these principles. What were those principles in relation to advice, as opposed to litigation? As I understand it, the Government set out to establish a system of advice that would prevent litigation being necessary. If you like, it was the legal equivalent of preventive medicine. How successful will these arrangements be when measured against that principle?
88 Can the Minister say what steps the Lord Chancellor's Department is taking to ensure that the arrangements, as they develop, meet the objectives set out by the Government? Both the noble Lord, Lord Goodhart, and the noble Lord, Lord Phillips, have distinguished the two critical stages in this process. The first one concerns the relationship between the Legal Aid Board and the solicitors; and the second one concerns the relationship between the solicitors and the general public, or those members of the general public who need advice.
Is the Minister satisfied that the system of monitoring by the Lord Chancellor's Department is making sure that the Legal Aid Board is going to meet its targets in time for 1st April 2000? What procedures has the Lord Chancellor's Department put in place to ensure that those targets are met? Further, is the Minister confident that, from 1st April 2000, the range of expertise among solicitors who are franchised and their geographical spread will meet all the likely advice targets that the Government will have identified?
It is only if the Lord Chancellor's Department can be confident that those targets are met that it can reasonably say good-bye to the green form system. Although we accept that the principles have changed, we are now entitled to ask the Government to measure their performance against their own principles. It is concern about the likelihood that there may be a shortfall that lies behind not only the views expressed by the noble Lord, Lord Goodhart, but also those expressed by the Opposition.
§ Lord Bach
My Lords, I am grateful to all noble Lords who have spoken in this short debate, as it has been described. I shall do my best to answer the queries that have arisen.
As has already been admitted, much of what has been said was said earlier this year, night after night, and has been repeated today in very much the same terms. I shall say, as briefly as I can, roughly what was said during the good debates on the Access to Justice Bill, as it then was.
The criticism appears to be that somehow or other the Government, through the steps that we are taking, will reduce meaningful access to this provision to those who most need it. The Government refute that proposition completely. It is suggested that it will not be possible for those living in urban areas or sparsely populated rural areas to consult a solicitor who provides legal aid. We dispute that. We do not think that that will happen under the new system.
I put into context some of the concerns that have been expressed about access to legal services. As has been said, the number of firms receiving contracts for January is about half of those which have been doing legal aid work up to now. About 5,000 solicitors' offices currently account for 90 per cent of legal aid expenditure. The other 5,000 offices account for the remaining 10 per cent, and typically undertake few such cases per year. Therefore the reduction in numbers as regards those firms that will undertake publicly funded work in this field is not nearly so 89 significant as it may appear. Although there is, of course, no direct correlation between the 5,000 that carry out 90 per cent of the work and the 5,000 that carry out 10 per cent of the work, I suggest that it is common sense that those firms which have received contracts are those which on the whole have always carried out a considerable amount of publicly funded work. They have received contracts because they have qualified under the franchise scheme that has been set up. That franchise scheme is all about quality.
The Government argue that the weakness in the case that has been put forward in the amendment is that no mention is made of quality. We argue that a number of firms that have not so far obtained contracts and have not passed the franchise test frankly do not have the necessary quality to give proper advice and assistance to those in need. Some firms have not applied; others have and have so far been unsuccessful. But the door is still very much open. It is important to remember the importance of quality in terms of the advice that is given.
The noble Lord, Lord Hylton, mentioned asylum seekers. It has been accepted on all sides that in the field of immigration a substantial number of legal advisers, solicitors and non-solicitors, have been quite unscrupulous in raising people's hopes through giving them false advice. We have had to take notice of that. That is why a large number of solicitors and legal advisers will not appear on our prescribed list of those carrying out immigration work.
I refer to particular points—
§ Lord Hylton: My Lords, before the noble Lord continues, will h
undertake to consult with the Home Office on the precise point that I was trying to make earlier?
§ Lord Bach
My Lords, of course I undertake to do that. The matter I am discussing is not a bad example of why the Government felt that it was necessary to do something with regard to the limited resources available for legal aid. We were concerned about quality, and about legal aid going through the roof.
It is unfair for noble Lords to criticise a scheme that is only just being set up. If the scheme does not work, I have no doubt that within a short period of time noble Lords who have spoken tonight, and, I dare say, others, will criticise it in this House.
I gently chide the noble Lord, Lord Phillips of Sudbury, for referring to a case that I am advised is sub judice. The case was heard today and I understand that the court deferred any decision. I do not think that it is proper that a case that is before the courts should be mentioned in this House at all, and certainly not in detail, when we a re discussing these regulations.
We are accused of setting up a system that is incredibly bureaucratic. I am told that the new contract issued t y the Legal Aid Board replaces and updates a wide range of existing guidance and is no longer than the provision which it replaces; indeed it is probably shorter. It is convenient for solicitors to have all this guidance in one place.
90 The Government suggest that these regulations have been used as a peg upon which to hang an old argument as regards change taking place in the nature of public funding for civil actions in this country. We have had this debate before and no doubt we shall have it again. However, I commend these regulations on the basis that change had to occur. It was necessary as quality was sometimes too low and too much public money was being spent unwisely. These regulations go some way towards putting into effect what Parliament decided was the proper way to proceed. They should be passed tonight. Therefore I ask the House not to accept the amendment moved so ably by the noble Lord, Lord Goodhart, if it is taken to a Division.
§ Lord Goodhart
My Lords, I thank the noble Lord, Lord Bach, for his reply. I regret that it was, not unexpectedly, not particularly helpful. Of course I accept that the arguments which have been raised in this debate were raised on more than one occasion during the passage of what was then the Access to Justice Bill.
However, I thought that it was not appropriate that this particular set of regulations should be allowed to pass through your Lordships' House on the nod as this is an important set of regulations. Although it is not made under the Access to Justice Act, it is the first of what will no doubt be a lengthy series of regulations that will come before your Lordships' House in the next few months in order to give effect to the principles of the Access to Justice Act. That being so, I thought that it was appropriate to raise this matter for debate by way of an amendment in order to emphasise the depth of the commitment of those on our Benches to a publicly funded system of advice and assistance and the depth of our concern over the damage which we believe that the Access to Justice Act may well do to the future of publicly funded civil legal aid in this country. I accept, of course, that it is not the intention of the Government to cause damage to the provision of publicly-funded legal aid, but I believe that that may well be the result.
Having said that, this is not an occasion upon which it would be appropriate to divide the House. We shall watch with great care what happens under the Access to Justice Act over the course of the coming months and years. No doubt there will be further debates in the future. But, on this occasion, I would ask the leave of the House to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ On Question, Motion agreed to.