COMMONS AMENDMENT (Hansard, 14 July 1999)

§ The Lord Chancellor
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. With the leave of your Lordships, I shall speak also to Amendments Nos. 3, 5 and 6. Amendment No. 5 elaborates particular objectives within the overall purpose of the community legal service. Amendment No. 3 is a consequential change to the statement of purpose in Clause 5(1), and Amendment No. 6 is simply a drafting improvement.
Amendment No. 1 removes the "principles" clause which your Lordships added to the Bill on the Motion of the noble and learned Lord, Lord Lloyd of Berwick. I approach the desirability of a "principles" clause on its merits. It may be desirable to define in statute the purpose and objectives of Part I of the Bill.
My fundamental difficulty with the existing clause is one of structure. We have set out in this Bill to make a very clear distinction between the community legal service and the criminal defence service. This reflects the different policy objectives and imperatives behind the public funding of legal services in civil and criminal cases; the different mix of services required; and the very different factors that drive demand and cost. Clause 1 is at odds with this approach, because it seeks to cover two separate schemes with a single set of objectives.
The Government's alternative approach is to include separate statements of the respective purposes of the community legal service and the criminal defence service. These are to be found in Clauses 5(1) and 13(1). They are no less effective for not appearing at the start of the Bill. The purpose of the criminal defence service is to provide advice, assistance and representation for people suspected of having committed criminal offences and for defendants in criminal proceedings. It is to provide that level of advice, assistance and representation required in the interests of justice. It is a service which must be provided to all who need it. That 399 is the position at present and will remain the position in the future. I do not see any need to expand or gloss the statement of purpose in Clause 13(1).
The purpose of the community legal service is wholly different. It is to provide legal services that effectively meet the needs of people who have civil law problems, subject to the constraint that the available resources for the community legal service should be used in the most appropriate and justifiable manner.
The important word "effectively" was added by Commons Amendment No. 2. The community legal service fund is designed to be a rational and transparent system, based on local assessments of need and a framework of priorities for allocating the finite resources available. This contrasts with the current legal aid scheme where the only effective way to limit spending is to reduce financial eligibility or increase contributions across the board—options which this Government, in contrast to the previous government, were not prepared to take.
I said in our previous debates that I was sympathetic to much in the noble and learned Lord's "principles" clause. That sympathy is given effect by Commons Amendment No. 5, which adds specific objectives for the community legal service. The objectives are: to improve the range, quality and accessibility of services; to ensure that the services provided are proportionate to the matter in hand; and to promote the swift and fair resolution of disputes without excessive resort to the courts. The objectives about quality, access, speed and fairness all reflect concepts in the noble and learned Lord's. Clause 1.
The exact formulation about access is, however, rather different. Clause 1 says that access should not be impaired by the place where services are sought. I regret that to the extent that this implies that people who live in rural areas can enjoy the same proximity to services as those in large towns, this is unrealistic. Further, the use of the word "place" restricts the concept of access to one of geography.
Amendment No. 5, on the other hand, sets the objective of improving the accessibility of services. This shows our commitment to providing effective access through the community legal service, without tying the concept solely to the number and location of offices; in other words, it allows for new technology, outreach services, telephone advice lines and other non-traditional ways of delivering services. This Bill creates the community legal service, and we are asking it to perform in the most efficient and effective manner. I therefore submit that the hands of those delivering the services should not be tied to one model of delivery or one way of working.
I now turn to those aspects of Clause 1 which are not reflected by Commons Amendment No. 5. Most importantly, there is no specific reference to discrimination against the disabled (as in subsection (2)(b) of Clause 1). I share entirely the objective of ensuring that access to legal services is not impaired by discrimination on the grounds of disability, or indeed of race or gender. We have considered very carefully whether the Bill should include an objective about avoiding undesirable forms of discrimination. On balance, the Government have concluded chat nothing can usefully be added to the existing law. The Legal Services 400 Commission and those it engages to provide services are already subject, as employers and service providers, to the provisions of the sex, race and disability discrimination Acts. As a public body, the commission will also be covered by the Human Rights Act which outlaws discrimination on a wide range of grounds in relation to people's access to their convention rights.
Legislation about discrimination is complex because it necessarily includes very careful definitions. It must cover both direct and indirect sex discrimination and must define the way in which complaints about discrimination are to be considered by the courts and tribunals.
An objective in the Bill about avoiding discrimination on the grounds of sex, race and disability would have to adopt the definitions of the existing legislation. Indeed, Clause 1 recognises this by referring to the Disability Discrimination Act 1995. But this would, at best, add nothing to the existing law, and I fear that it could create some ambiguity. On the other hand, anything that extended the scope of existing discrimination law—as set out in detail in the individual statutes—would require wider and more detailed consideration than is possible in the context of this Bill; it would merit separate legislation in its own right.
That said, I fully recognise the importance of providing a system that will deliver help to those who need it, irrespective of their race, sex or disability. That is why we need flexible machinery that can respond to the changing needs and priorities of the community.
Under this Bill, for the first time in legal aid history, we shall be able to address the particular needs of any part of the community, whether it be the disabled or those from an ethnic minority background. Clause 7(5) refers to "areas or communities" specifically so that the commission may target non-geographical communities. The Legal Aid Board has already directed its regional legal services committees that their strategies for assessing the needs and priorities of their communities should include a section which discusses the needs of specific client groups (for example, ethnic minorities, disabled, elderly, carers, remote communities) and advises on how best to address those needs through contracts.
The Legal Aid Board's legal aid franchise quality assurance standard also makes it mandatory that firms wishing to obtain a franchise have a written equal opportunities policy which is in effective operation. The policy must make it clear that the firm will not, discriminate on grounds of race, gender, religion, disability or sexual orientation in deciding whether to accept instructions from clients, instructing counsel and other experts, in the provision of services or in the selection, recruitment and treatment of staff".
I recently instructed the board to report to me by September with proposals for monitoring the ethnic origin and gender of both the clients receiving services under its contracts and the providers supplying them. I also asked the board for a report on the options for monitoring access for the disabled.
401 Amendment No. 5 does not replicate subsection (2)(a) of Clause 1, which refers to services that people would, be unable to obtain on account of their means". This formulation has been used to define legal aid since 1949 and is currently found in Section 1 of the Legal Aid Act 1988. We are reluctant to apply the terminology of legal aid to the new schemes, which are intended to mark a radical change. In particular, the reference to "means" tends to give the sense that legal services can only be funded from a person's existing resources or by the taxpayer. This does not chime with the measures in Part II intended to enhance conditional fees and promote other new ways of funding litigation. Furthermore, the words in question seem to me too general to add anything of substance when presented as a specific objective. I read them more as a description of legal aid, and as such I think that their sense is adequately covered by the purpose statements in Clauses 5 (1) and 13(1).
The new paragraph (c) added by Amendment No. 5 draws on Clause 1 by referring to the swift and fair resolution of disputes; but it does not adopt the additional words, with the parties placed on an equal footing". The difficulty I see with these words is that they could be taken to imply that the Legal Services Commission should match the spending of a wealthy private party, regardless of the importance or complexity of the case. That is simply unrealistic and would lead to the limited resources of the community legal service being exhausted on a relatively small number of cases. The community legal service will have a substantial budget and I wish to ensure that as many people as possible benefit from its services. An objective in this form could severely limit the number of people who could be assisted, which I am sure was not the intention of those who proposed it.
On the basis of those explanations, I hope that your Lordships will agree that the Government have done all they can to reflect the spirit of Clause 1 in a way that is consistent with the new structures we are seeking to create in the Bill.

§ Lord Goodhart
My Lords, first, I welcome the Government's acceptance that a purpose clause is desirable in connection with the community legal service. I also accept the argument of the noble and learned Lord the Lord Chancellor that it should be a different purpose clause from that which applies to the criminal defence service.
I understand from the noble and learned Lord, Lord Lloyd of Berwick, that he regards this group of amendments as acceptable, even if not preferable to his own. There are certain respects in which I prefer the wording of the old Clause 1 to that of the new amendment, but I do not believe that any useful purpose would be served by my going through a legal analysis 402 of the two different purpose clauses. Therefore, I simply say that from these Benches we are content to accept this group of amendments.

§ Lord Kingsland
My Lords, I, too, wish to say that we agree with the judgment of the noble and learned Lord the Lord Chancellor that the purpose clause should be divided into two: civil matters and criminal matters. I recognise that the noble and learned Lord, Lord Lloyd of Berwick, has decided to accept the solution provided by the noble and learned Lord the Lord Chancellor. I have been greatly influenced by the judgment of the noble and learned Lord, Lord Lloyd of Berwick, in that matter.
The purpose clause in question, the clause which relates to civil matters, now has two weaknesses. First, it does not provide for equality of arms. The noble and learned Lord the Lord Chancellor explained why that is so. Secondly, and perhaps more significantly, it seems to me that it will now not be possible to review judicially a situation in which, on the one hand, a litigant meriting legal aid has a good case but, on the other, cannot obtain a CFA at a reasonable cost. I suppose that was the fundamental reason why the noble and learned Lord, Lord Lloyd of Berwick, tabled the amendment in the first place. Nevertheless, I agree with the noble Lord, Lord Goodhart, that the situation is such that we have decided not to press the amendment.

§ Lord Ackner
My Lords, I had the advantage of reading a copy of a letter which my noble and learned friend the Lord Chancellor wrote to my noble and learned friend Lord Lloyd setting out in considerable detail his views, which he has fleshed out today. I found the letter adequately convincing and therefore I have no resistance to offer in relation to the proposals.

§ Lord Hacking
My Lords, since we debated this matter in detail both in Committee and on Report, I am delighted to hear from a number of noble Lords that the noble and learned Lord, Lord Lloyd of Berwick, is happy with the proposals of my noble and learned friend the Lord Chancellor.
As has been recognised in our short discussion, the community legal service and the criminal defence service have different objectives and modus operandi and therefore it is fitting that different principles should guide their operations. I believe that the noble and learned Lord deals better in his amendments with geographical access to justice generally. I refer to Amendment No. 5 and to Clause 7(5).
Finally, I want to raise a point which was mentioned by the noble Lord, Lord Windlesham, on Report. The drafting of Clause 1 places a statutory duty in that, Every person exercising functions … must act". When the purpose of the exercise was to establish principles, it was not a befitting way to place it under a form of statutory duty. Again, my noble and learned friend the Lord Chancellor has dealt with that in the amendments before us. For all those reasons, perhaps 403 I may say from the noble and learned Lord's Back Benches that the amendment has the support from this quarter of the House.