HL Deb 13 December 1999 vol 608 cc90-7

8 p.m.

Lord Bach

rose to move, That the draft regulations laid before the House on 29th November be approved [3rd Report from the Joint Committee].

The noble Lord said: My Lords, I hope that this order will take slightly less time than the previous one.

These regulations amend the Legal Aid (Prescribed Panels) Regulation 1999. The existing regulations provide that legally aided clinical negligence cases may be carried out only by legal service providers who are members of a prescribed panel. The panel consists of firms who hold a franchise from the board for that type of work.

I shall say a brief word about clinical negligence panels. It is clear that the clinical negligence panel has led to better results for the clients and less public money being wasted investigating hopeless cases. There are currently 156 firms on that panel, which has been operating now since February 1999. One of the conditions for a clinical negligence franchise, and therefore a prior condition of membership of the prescribed panel, is that the solicitor is a member of either the Law Society's medical negligence panel or the Association of Victims of Medical Accidents panel. Statistics for 1996–97 showed that members of those panels had a higher success rate compared with non-panel members, and recovered on average £48,500 for their clients as compared with £18,000 by non-panel members. For every £1 of taxpayers' money spent, panel members secured £4.10 in damages compared with £1.70 for non-panel members. I would also say—this is an important point which relates back to our last debate—that since the clinical negligence panel has been in operation, the Lord Chancellor's Department has received precisely no complaints about inadequate access.

There is an important point to be made here. People with a clinical negligence claim, which represents a tragedy in their lives, deserve expert assistance. That is what the health authority or the doctors they are suing will rightly have. People on legal aid deserve the same. We have banished for ever a state of affairs in which a solicitor could get legal aid for his client and take the case all the way through the courts—regardless of his want of expertise. Our reforms are all about quality assurance and giving people access to specialists. The short answer to complaints about the reduction in the number of franchisees is this: there is choice, but among the expert, not the inexpert.

I was gratified to read the debate in another place on these regulations. The Liberal Democrat spokesman there spoke in support of them. He said that he supported the regulations, especially with regard to specialisation and value for money. I am quite sure that will be the consistent attitude shown in this House, too.

The regulations before us today amend the existing regulations to create similar requirements for family cases and immigration cases. I should like to explain in a little more detail how a firm of solicitors can obtain a place on the family or immigration panels.

The only qualification which a firm needs in order to obtain a place on either the family or the immigration panel is to be, for the time being, authorised by a contract with the board to provide representation in that category. As I explained in the earlier debate, a precondition of obtaining a contract is to pass a full or provisional audit against the legal aid franchise quality assured standard. To obtain a franchise, a firm must show competencies in, inter alia,.business planning, client care, financial management and equal opportunities. Most importantly, the firm must have a solicitor who can attain the relevant supervisor standard. To do this, solicitors must belong to an accredited panel, such as the Law Society's family panel; have gained experience, knowledge and understanding in the franchise category by doing a specified amount of casework themselves; and they must actively maintain that knowledge and demonstrate that they are sharing that knowledge with their staff. Clients can therefore be confident that, where their cases are being conducted by junior staff, those staff are being supervised by an experienced and knowledgeable solicitor.

For the first round of contracting only—that is, for contracts that commence on 1st January next year—all firms which have applied for a franchise within the board'' published timetable and which have obtained the relevant franchise, were guaranteed a contract in the family and immigration categories. These firms were put on the board's "Bid Panel A". Firms which failed to apply or qualify in time for a franchise have been placed on a reserve panel, "Bid Panel B", and may still qualify for a contract after 1st January provided there are funds available, if there are gaps in access after the award of contracts to Bid Panel A.

I have said that these regulations establish a family franchise panel and an immigration franchise panel as prescribed panels under Section 32(7) of the Legal Aid Act 1988. Section 32(1) of that Act creates a general right for a person entitled under the Act to receive advice or assistance or representation, to select any legal representative willing to do so to advise, assist or act for him or her. That right may be qualified by regulations made under Section 32(7), so that the person receiving assistance may select only from legal representatives who are for the time being members of a prescribed panel.

I do not think I need to go through with your Lordships the regulation that sets up the family franchise panel, or the definition of "family proceedings" in Regulation 6; likewise with Regulation 7, under which an immigration franchise panel is set up. Regulation 8 defines the meaning of "immigration proceedings". Perhaps I should remind your Lordships of that definition in the regulations we are considering. The proceedings are defined as, proceedings relating to immigration, nationality or asylum". before specified courts. The main types of proceedings covered by this definition are judicial review, habeas corpus and appeals from the Immigration Appeals Tribunal to the Court of Appeal or to the House of Lords.

The number of people seeking asylum in this country has grown over the past few years and the indications are that the numbers will, for the immediate future, continue to grow. The Legal Aid Board is awarding contracts to meet this increasing demand and has retained a significant reserve which will allow it to expand contracts as the patterns of genuine need become clearer. In particular, the board will be able to react to changes in the geographical distribution of demand following the dispersal of asylum seekers around the country. I hope that that statement will give some comfort, at least, to the noble Lord, Lord Hylton.

Under the general civil contracts, legal aid will for the first time cover representation before the immigration appellate authorities. This will reduce duplication and help to make the system more effective.

The creation of a quality assured immigration franchise panel also addresses—here I come back to an argument I sought to employ in the previous debate—the problem of unscrupulous advisers who have been able to take advantage of asylum seekers up to now. The franchise process has excluded a substantial number of unscrupulous and incompetent firms from the scheme.

Concerns have been expressed about the effect of the Government's reform on access to legal services. We have heard them clearly tonight. I have already given the figures as regards 5,000 solicitors accounting for 90 per cent of legal aid expenditure and the number of firms receiving contracts for January being around 5,000. The reality is that most of the firms which have not been awarded contracts have in the past conducted only a few cases each year. In family work, the Legal Aid Board is to award over 4,500 contracts. It is also awarding about 530 contracts in immigration work. A substantial sum is kept in reserve to allow for the number of contracts to be increased should the need arise. We would say, "Compare the number of contracts with the 800 Benefits Agency outlets in England and Wales, or indeed with the number of constituency MPs in England and Wales". I have estimated the figure at about 550.

It is also the case that the number of firms allowed to do clinical negligence cases has been limited to 156, with no detrimental effect whatsoever on access and no complaints from the public. Contracts are flexible instruments. They can be structured to deal with specific geographical circumstances. Members of the clinical negligence panel, for example—and this is important bearing in mind some of the concerns that have been expressed—are required to travel to their clients where that is appropriate.

In future, there will be a wider range of alternative methods of delivery for legal advice available to the public. The board will shortly be piloting schemes which include telephone advice, outreach surgeries in rural areas, and second-tier advice services, which will provide advice on difficult areas of law to contracted legal service providers.

As I said earlier, contracting will be good for the client, good for the taxpayer and good for competent providers. I very much hope that those who are wary of it will see its advantages in due course. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 29th November be approved [3rd Report from the Joint Committee].—(Lord Bach.)

Lord Goodhart

My Lords, my party has always supported the principle of franchises and franchise panels. Therefore in principle we do not object to the regulations, although the view that we have also taken is that any firm able to reach the appropriate quality standard should be entitled to a place on the franchise panel. That matter does not appear on the face of the regulations.

My only question about it was passed to me by the Law Society and highlights its concern with immigration practitioners. There is a serious problem of under-supply of competent practitioners. A considerable number are not competent, but those who are and who are qualified to go onto the panel are in short supply. In that circumstance it is surprising that a number of firms which are qualified to be included on the panel have received contract offers for an amount of work which is substantially less than the amount that they were doing last year.

Given that one expects the work not only to remain at least at the level reached last year, but to increase quite considerably as the backlog is tackled, perhaps the Minister can say why firms have been offered contracts for less work than they did last year when demand will increase not only because of the exclusion of incompetent operators, but also because of the strong probability of an increase in the overall work. I understand what the noble Lord said about an increase in the reserve, but surely that is required anyway to cope with the probable increase in work.

8.15 p.m

Lord Phillips of Sudbury

My Lords, I believe that the noble Lord, Lord Bach, is a little too sensitive. In both his speeches this evening he gave us a short tour d'horizon of the rationale and justification for the Access to Justice Act. He must expect a little reprise on our part, especially when it is genuinely put in the context of what seem to be current experiences. I hope it is helpful to the Government to hear what is taking place in the field. However much the Government may believe that the way in which this matter is apprehended is itself slewed by the resistance of parts of the profession to these reforms, I believe the Minister will accept that practising solicitors are extraordinarily down to earth and pragmatic. Once rape is inevitable they do not exactly lie back and enjoy it, but they do get on with it.

The few remarks that I shall now make are genuinely intended to help the Government make the best of this Act. The noble Lord, Lord Bach, has made much of the clinical panel. Indeed, it has worked well. But I believe he will accept that it concerns a very special core group of practitioners. It is not safe to generalise in terms of national needs from this very particular and specialist group of solicitors.

Perhaps I may add to what the noble Lord, Lord Goodhart, said as regards the way in which the immigration panel is working. One particular problem in the summer was that the Legal Aid Board was urging firms first to get onto the panel and take out franchises and, secondly, to provide more scope and ability to contend with an increased workload. I suspect that at that stage the board thought that there would be a lower take-up for panel work in the immigration field than has been the case.

The noble Lord, Lord Goodhart, referred to the consequences. The reward of the number of cases to those on the panel has been substantially fewer in all cases than were applied for and expected. That does not matter to a firm which has a great deal of private client work and for which immigration work is a relatively small part of its practice, such as my own. But it matters intensely to precisely the kinds of firms that the Government ought to be helping and encouraging; namely, the mainline providers.

The Immigration Law Practitioners Association held a meeting last week specifically to discuss how things are going. There was a high level of concern about the way in which this particular aspect of the Legal Aid Board's contracting is working. So I mark the Minister's card on that point because I am sure that the Government will want to be flexible and reactive to real problems.

Finally, I make this point. It is all very well speaking endlessly about quality. We on these Benches have never been in any sense in opposition to the Government on the desire for quality in legal aid any more than we have been against franchising as long as one has open panels. The point that the Government must return to is that it is not realistic in this age to continue talking about quality, let alone increased quality, when the levels of remuneration for practitioners have remained unchanged for six years.

Those in the House who know a little about the way in which legal fees work may be surprised to know that the standard remuneration per hour for panel work is £48.25 pence. I would love to learn of any of the lawyers who have been adorning the Government Benches who are happy to work at that rate, which is indiscriminate as between the most senior and most junior practitioners. Unless the Government address that issue—with no increase, let alone a real increase, in legal aid remuneration all these years—they will find that their wish for quality, which we share, will disappear into the dust.

Lord Kingsland

My Lords, as I said earlier, the Government got their Act. The regulations are entirely consistent with its terms. The Government claim that the Act will give better access to justice to the citizens of this country than its predecessor. I for one am prepared to give them a good year to see whether they are right.

Lord Bach

My Lords, I am grateful to those noble Lords who have taken part in the discussion on the regulations. In an attempt to answer the noble Lord, Lord Goodhart, about the query of the Law Society concerning contracts for immigration work, we believe that there is substantial evidence that the current volume of cases does not truly reflect the need. Everyone has recognised that the system has been abused by a few unscrupulous providers. Obviously the true level of genuine need cannot be known, but we estimate that it falls somewhere between 85,000 and 100,000 cases.

Lord Goodhart

My Lords, I am most grateful to the noble Lord for giving way. The problem that has arisen here is not an overestimate of the amount of work that might be generated as a result of some firms being squeezed out for doing bad work, but what will arise from the firms which will themselves be on the panel and which will be offered contracts for less work than they were doing last year. By definition, those are the competent firms.

Lord Bach

My Lords, no one is disputing that those are competent firms. They would not otherwise be on the panel. However, perhaps the reason that they are to be given less work than they might otherwise have expected is that our estimate of the total amount of work may be rather less than is sometimes thought. That is because the current volume and that generated over the past year has been artificially raised by those who have used unscrupulous methods to run effectively hopeless cases. The true level is between 85,000 and 100,000, taking account of the recent influx of asylum seekers. The pattern of demand is also uncertain because of the exclusion of unscrupulous and incompetent suppliers and the changes arising from dispersal. To retain flexibility, the board has initially allocated 85,000 new matter starts, and has kept in reserve a further 15,000 to be allocated as required. The number of new matter starts required to meet priority need in this area will be kept under review.

Furthermore, of the 85,000 new matter starts, 80,000 are allocated to solicitors and 5,000 to the not-for-profit sector. That sector is growing and is being encouraged because all would agree that there are certain fields—immigration matters may certainly be one of them—in which properly franchised not-for-profit sector practitioners may be able to offer a real improvement in service.

I am delighted to hear that the noble Lord, Lord Phillips of Sudbury, is keen on quality—I never for a moment doubted that—but the Government would say that if you wish the end, you have to wish the means as well. We would argue—we are sure that we are right on this point—that those means must include much more quality testing of lawyers and the not-for-profit sector before allowing members of the general public to seek advice, assistance and perhaps representation from those who have not always been able to deliver those services in the best way.

Lord Phillips of Sudbury

My Lords, I am most grateful to the noble Lord for giving way. Can he confirm that the quality standards that the Legal Aid Board is looking for from voluntary sector providers will be the same as those offered by private sector providers?

Lord Bach

My Lords, in all important respects those standards are bound to be the same. There will not be two separate levels that allow voluntary practitioners not to need to pass as high a test of quality as that of solicitors. I dare say the tests may not be precisely the same because they will be dependent upon the kind of work that is being done. However, voluntary providers will not, as it were, get through merely because they are voluntary providers rather than solicitors.

I believe that I have covered all the points that have been raised, and on this occasion I do not need to reply to the noble Lord, Lord Kingsland. I commend the regulations to the House.

On Question, Motion agreed to.