HL Deb 26 April 2001 vol 625 cc418-30

9.38 p.m.

Lord Kingsland rose to move, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 20th March, be annulled (S.I. 2001/1077).

The noble Lord said: My Lords, under the Access to Justice Act 1999, the noble and learned Lord the Lord Chancellor has a duty to consider three statutory factors in setting rates of pay for publicly funded work: first, the need to secure the provision of services by a sufficient number of competent persons; secondly, the cost to public funds; and, thirdly, the need to secure value for money. The noble and learned Lord has contended that there is no evidence at present to suggest that there are insufficient barristers undertaking publicly funded family work and that, in fact, the numbers trying to enter the profession are increasing. Indeed, this latter point is frequently made, but, of course, it does not follow that new entrants into the profession will be willing, under the new publicly funded rates, to continue to work in this area.

There are of course many aspects of family work: financial ancillary relief applications consequent upon divorce, private law proceedings relating to children and public law cases relating to children.

It is important to note the comments from the Lord Chancellor's Advisory Board on Family Law as to the levels of expertise required of, and the burdens placed upon, advocates in this field. In its report for the year 1999–2000 the board quoted from its 1998–99 report as follows: Children Act proceedings are non-adversarial and require particular skills from lawyers both in and out of court. Lawyers who do not possess those skills can cause both delay in the resolution of the case and increased costs due to the unnecessary prolongation of court hearings".

It cannot be stressed too much that the proper and efficient administration of justice in family cases requires that the work be undertaken by practitioners of skill and experience. These qualities are developed over time. Parents and spouses who are brought into contact with the courts in family law often find it a particularly stressful and anguished experience. Emotions frequently run high. Parties often show their most unreasonable side. Cases, moreover, are often highly complex. All these aspects underline the need for the experienced and skilled advocate to help litigants with sound and patient advice and skilled advocacy in order to guide them through stressful proceedings.

The scheme, which is incorporated in the Community Legal Service (Funding) (Counsel in Family Proceedings) Order 2001, and which has been recommended to your Lordships tonight by the Minister, the noble Lord, Lord Bach, on careful analysis, is not designed to achieve the aims to which I have already made reference. Most importantly, it is not designed to ensure the continuing provision of services in family work by barristers of proven competence, skill and experience.

The scheme is described as a graduated scheme. It is in reality nothing of the sort. It is a fixed price scheme where the same rate is to be paid regardless of the seriousness of the case. Compare this with the scheme for criminal fees. That is a truly graduated scheme where the rate payable is graduated according to the seriousness of the crime charged. In criminal work, the reality is that the more junior junior counsel will do the less serious work. Senior counsel will be remunerated at a higher level when they undertake the more serious criminal cases within the scheme.

In family work senior junior barristers almost inevitably have a succession of substantial cases which require considerable preparation. Under this scheme they will be paid the same rate as the most junior junior barrister undertaking a straightforward case. When the fee payable is translated into an hourly rate, it will be seen that, if senior junior barristers are to do the work properly, they will be paid in effect on a reducing scale having regard to the hours undertaken in preparation and the true hourly rate. The proposed uplifting features are not enough to compensate for this and will not apply in a great many serious cases because they are extremely restricted in their scope.

The Lord Chancellor's Department has contended that it is a question of swings and roundabouts—that a junior barrister may lose out on the more serious case but will gain when he or she undertakes a less serious or more simple one. I have never understood whether it is the swing or the roundabout that is to benefit. It is likely, in the case of senior junior barristers, to be a case of all swings and no roundabouts, or vice versa. The department's point fundamentally ignores the reality of senior junior barristers' work. They do not receive the benefit of undertaking the simple straightforward case, but have a succession of substantial and difficult ones.

The report of the Legal Aid Board for 1999–2000 established that 16.4 per cent of the total payments for family legal aid went to barristers, and that 83.6 per cent went to solicitors whose fees have been increased by between 10 per cent and 25 per cent, as announced by the noble and learned Lord the Lord Chancellor. As I understand it, this scheme is based on a model. The model is based on data collected prior to 1996, and uplifted for inflation.

The Lord Chancellor's stated aim is to achieve a 5 per cent reduction on payments currently made to barristers. Very junior barristers will suffer no reduction and very possibly will achieve an increase for their work in simple cases. Solicitors are to have their rates increased. In those circumstances, it is only too obvious that senior junior barristers will suffer a reduction of more than 5 per cent in their income. Some senior junior barristers are likely to find that they suffer a reduction of between 25 per cent and 40 per cent in their gross income.

No one knows what the current level of payments is for a case because the model is out of date. Since then, the amount of preparatory documents required in family cases has undergone a wholesale change, and increase, in accordance with the President of the Family Division's practice direction. The savings which are to be made by implementation of this scheme relate only to 16.4 per cent of the total payments. Therefore, barristers are being asked to bear the whole reduction in the level of legal aid payments.

Under the scheme, payments are related to various functions. Function 1 relates to all work other than conferences which is carried out prior to the issue of proceedings, or which does not fall within the remaining Functions 2 to 5. Only one Function 1 payment can be claimed per case. This means that if a barrister is asked to prepare a pre-issue advice, and that barrister is later instructed on other aspects possibly to give further advice, he or she will be unable to claim payment for that further work. That work could have taken several hours and it is work for which the barrister could be sued in negligence.

Further, everything is included in the function price. This could include the drafting of statements, complicated advice and the preparation of documents required in accordance with the President's practice direction, such as a chronology, a statement of issues, schedules and a skeleton argument. As one global payment is to be made regardless of the amount of work undertaken, some work will effectively be unpaid.

Payment will be allowed for only one conference or one consultation, regardless of whether there are further developments in the case which require further conferences. If a second or further conference is required, the barrister will not receive any further payment. Conferences in family cases are of crucial importance. Particularly in ancillary relief cases, they are usually the barrister's only contact with the case. Advice given in conference will often lead to settlement of the case and a consequent saving of costs. Conferences in family cases require a lot of detailed preparation. The rates proposed for conferences and consultations are totally inadequate having regard to the importance of that work. In ancillary relief cases there may well be a preliminary conference and then the need for a further conference when full discovery has been provided. Why should the second conference, or consultation, go unremunerated?

There is a further aspect of the scheme which is likely to produce unfairness. Where a barrister takes over a case where a previous barrister has had a conference, as only one conference will be remunerated, one or other of the barristers will not be paid. The scheme proposes that an arrangement is reached between the barristers as to a sharing of the fee. This is self-evidently unrealistic and at best will produce a payment which is wholly inadequate for the work undertaken.

By contrast, solicitors are to be paid for the work which they actually undertake in family cases. They will be paid an hourly rate for the same work undertaken by barristers. Frequently in family cases senior junior barristers will appear against solicitor advocates particularly in the County Court where much of the family work is undertaken. This is hardly an inducement to the solicitor advocate to settle the case. There is inherent unfairness about such an approach to remuneration.

The Lord Chancellor's Department stated that the assessment of legal aid fees cannot be relied upon in order to achieve the necessary savings. The noble and learned Lord the Lord Chancellor claims that it is a discredited scheme and that there is a need to produce certainty. It is indeed a remarkable feature of the Lord Chancellor's approach that he has left in place the system of assessment in order to deal with the payment of solicitors, which represents 83.6 per cent of the total fund, and abolished it in relation to 16.4 per cent of the fund—that part of the fund which is devoted to barristers.

In ancillary relief, it is frequently the case that the wife of a wealthy husband has no assets or income of her own. She may be publicly funded, whereas her husband will have access to lawyers on a private basis. The wife's senior junior barrister or possibly Queen's Counsel under the scheme will be paid a totally inadequate rate for careful and considered advice which could have far-reaching consequences for the settlement and conduct of the case. The fee will not reflect the degree of responsibility to be exercised by the barrister and the likely time devoted to the case.

If it is right to pay solicitors increased rates which presumably the noble and learned Lord the Lord Chancellor considers reasonable, why is it fair to pay barristers such inadequate and in some cases derisory rates?

Why should senior junior barristers, who are individuals with normal personal and family commitments, be obliged to work long hours at uneconomic rates? To date the evidence is only anecdotal, but several senior practitioners have expressed an intention to give up undertaking any publicly funded work. They propose to do this with considerable regret. They came to the Bar to make a living but also to undertake legal work for people particularly in care proceedings who are often among the most disadvantaged members of society. It is right that they should be paid at a rate which reflects the skill and experience and the time which they bring to a case. If barristers are to be paid the same rate regardless of the seriousness of the case and the time devoted to it, they cannot achieve a natural increase in earnings as they undertake increasingly serious work commensurate with their developed skill and experience. They will earn at no greater rate than the pupil or the very junior barrister. It is not surprising therefore that they will see no future for themselves in publicly funded family work.

This scheme is likely to lead to a haemorrhaging of talented, skilled and experienced practitioners from publicly funded family work. The loss of such practitioners can only work to the detriment of people whose sole contact with the administration of justice is in connection with family work and who need barristers of skill and experience to protect and guide them through a most stressful period in their lives. This can only undermine the efficient administration of justice.

The right to family life is enshrined in the Human Rights Act. The noble and learned Lord the Lord Chancellor may care to reflect that these very rights are being put under threat if litigants are deprived of barristers of sufficient skill and experience to advise them and present their case. I beg to move.

Moved, That an humble Address be presented to Her Majesty praying that the order, laid before the House on 20th March, be annulled (S.I. 2001/1077).—(Lord Kingsland.)

Lord Goodhart

My Lords, I give strong support to this Prayer. The work of the family Bar is of enormous importance in human terms. The Bar has to help courts to take decisions which will affect children for the whole of their lives, such as when a marriage or a relationship has broken up, which parent does the child live with? What access should the other parent be given? Indeed, in some cases should children be taken away from their natural parents altogether and taken into care? In any of those cases a wrong decision can have a devastating effect; and a wrong decision is more likely to be taken if counsel who appears for the child, or for a parent, is inexperienced, incompetent or overworked.

The order lays down strict rules about fees. The problem with the order, as the noble Lord pointed out, is that it is not sufficiently graduated. In particular, there is in effect a flat rate for all work done out of court irrespective of the time spent on it. There are, of course, some exceptions. There is a possibility of a special issue payment under regulation 9. But that regulation is drafted in terms which make it clear that it is intended that special issue payments should be very special indeed. There is a possibility of small extra payments under regulation 11 for the reading of unusually long court bundles. But those, frankly, are likely to have, at best, a very limited effect.

There are, of course—and any honest member of the Bar must accept it—some counsel who, if paid by the hour, will drag out the work to enlarge the fee. There are justifiable criticisms of the way in which legal aid money is sometimes spent. We had a striking example of that only yesterday in Mr Justice Butterfield's criticism of over-representation of the defendants in the Afghan hijack case. But those criticisms do not apply to any significant extent, I believe, to most members of the family Bar. It is obvious, surely, that more complicated cases need more work done on them especially perhaps before the hearing.

The effect of the regulations will be that counsel handling the relatively simple cases will receive the same amount for their preparatory work as someone handling a more complex case. As the noble Lord pointed out, this will hit senior juniors. The more experienced juniors, the ones who handle the more difficult cases which need more time spent on the preparation, will suffer in particular.

The noble Lord, Lord Kingsland, mentioned that estimates suggest that fees will be reduced by as much as between 25 and 40 per cent for barristers in that category. Those are gross fees before a contribution to rent and other chamber expenses; and since those costs will not be reduced, the net fees will be reduced by even more than those headline figures.

These people have mortgages. They have children to clothe and feed. There is a grave danger that those who can do so will change the nature of their practice or leave the Bar altogether. Those who have already gone into family law know that few, if any, of them would become fat cats by comparison with the barristers at the commercial Bar or the other specialist branches of the Bar. But this order will widen the gap much further and will surely deter young people from going into family law. Indeed, there will be a rush out of it.

I understand that there is to be a meeting of the Bar Council on Monday. At that meeting the Bar Council will consider changing the rules of professional conduct so that counsel will not be required to assume, as a matter of course, that the legal aid fee offered for family work is a proper fee. That will mean that the cab rank rule will not apply to publicly-funded family work. That would be a very grave step. The Bar's acceptance of the duty to take on legal aid work, even when it means that more lucrative offers of private work have to be turned down, has been essential to the success of legal aid. Only in the most extreme circumstances would the Bar depart from that principle, but that may happen next Monday.

I have one further point that is a little off the subject of the order, but is nevertheless relevant. The attack on the fees of the family Bar is not the only example of cost-cutting that threatens the effective work of family courts. The Lord Chancellor's Department has recently proposed the introduction of a banded and fixed fee system for guardians ad litem, who play an invaluable role in care proceedings.

I recently received a letter from an experienced guardian who has high qualifications. She said: It is difficult to follow the reasoning behind the Lord Chancellor's department to introduce banded and fixed fee payments at a rate which would result in Guardians' incomes being significantly reduced and an inevitable exodus of experienced, committed and talented practitioners from the service". She went on to say: Under the new suggested pay scheme I would earn little more than a newly qualified social worker. I will leave unless this dispute is resolved. I believe many colleagues would do the same with the resulting loss to children and their families". The order and the new proposals on fees paid to guardians ad litem create a real danger that the invaluable work of the family courts may be undermined. I find it unsympathetic to say the least that proposals to cut the fees of family barristers and guardians ad litem should come from a department whose head is entitled to a much higher rate of pay than are his colleagues. For the year to 1st April 2001, the salary of a Cabinet Minister in your Lordships' House was just under £86,000 a year. The salary of the noble and learned Lord the Lord Chancellor was nearly double that, at £167,760. The Lord Chancellor's Department has argued in the past—and may possibly argue again today—that fees of barristers doing legal aid work should be compared with public service salaries rather than with the fees of barristers doing privately funded work. I accept that there is some force in that argument, but I shall treat it more seriously when the Lord Chancellor's salary is cut to a level equal to that of other Cabinet Ministers in your Lordships' House.

The Parliamentary Secretary, Lord Chancellor's Department (Lord Bach)

My Lords, I thank both noble Lords for their contributions. We do not agree with the Cassandra-like prophecies that have come, unusually, from both noble Lords. I shall try to explain why in a moment. I was somewhat surprised by the last remarks of the noble Lord, Lord Goodhart, about guardians ad litem, who have nothing to do with the order, and, more particularly, about my noble and learned friend the Lord Chancellor. The noble Lord knows better than anyone that the Lord Chancellor's salary is set with regard to his position as the head of the judiciary. That has been the position under governments of all parties.

I shall explain what the family graduated fee scheme actually is. It is a new scheme to pay barristers for their work on publicly funded family law cases. It provides for fees to be paid for different types of case. Those fees are graduated to take account of the complexity of the case. The more complex the case, the higher the fee.

The regulations provide that family work will be divided into four types of case: public law children; private law children; family injunctions, which are commonly cases of domestic violence; and ancillary relief and other types of family case. Each case is then broken down into five functions which reflect different aspects of the case. They are: advice; conferences; two types of interim hearing; and the main hearing. Set fees, which vary between the four categories of case, are paid for each of those functions.

Additional payments can then be claimed to reflect special payments for different types of complexity that may occur in a case. Those include, for example, allegations of abuse against a child and complex foreign financial issues. They also include other factors which may make a case more time-consuming or difficult, including the scale of the paperwork to be submitted to the court, the presence of experts or the fact that one of the parties is unrepresented. Barristers will also claim separately for incidental items, such as listening to evidence tapes and travel expenses.

From that brief description, the House will appreciate that the scheme recognises that different cases will require different types of work from barristers and that it rewards them for that.

Discussions on the family graduated fee scheme started in 1996 under the previous government. By that stage, negotiations on the criminal graduated fee scheme were near completion. That scheme was introduced in 1997 and has proved a considerable success. It will be extended later this year to cover a wider range of criminal cases.

We decided to continue the negotiations on the graduated fee scheme for family work. We were, of course, encouraged by the fact that the criminal graduated fee scheme had shown conclusively that such a scheme can work for payments to counsel. It was also clear that the existing scheme for the family Bar was in desperate need of reform.

Under the present fees system, fixed rates, with standard and maximum payments, are paid to junior counsel. The rates cover only briefs which last a day or less. All other briefs for junior counsel and all payments to Queen's Counsel are subject to the discretion of the court. As your Lordships know, that means that the Government have no way of predicting or controlling the amount of taxpayers' money that is paid to barristers.

A graduated fee scheme means that, in common with every other type of professional, barristers know in advance of a case how much they are likely to be paid. Under the graduated fee scheme, barristers will also be paid far more quickly—usually within three or four weeks of submitting their claim. We did not hear much about that tonight. At present, of course, they can wait months, or even years, to receive payment.

The scheme that we are implementing is not the same as the one that was under discussion in 1997. It has been subject to an extensive period of consultation with the Bar and other interested parties, including the Law Society, members of the judiciary and others. That process was launched in July last year and closed on 12th October. Since then, numerous meetings with the professional bodies have taken place, at both ministerial and official level.

A significant number of changes have been made to reflect the concerns expressed, particularly by the Bar. For example, a number of changes have been made to reward senior junior counsel, who are likely to take on the more complex cases. Those include uplifting by one-third the fees paid for cases which take place in the High Court. They will normally be cases conducted by senior juniors. They also include introducing new payments to reflect the size of the court bundle. We have also made changes to reflect new ancillary relief procedures introduced last year.

So far as concerns preparation, we are of course aware of the president's practice direction. The scheme has been amended to take account of that practice direction and, in particular, a court bundle payment was introduced to reward counsel for the extra preparation required in more complex cases which will be reflected in the size of the court bundle. That, again, will assist more senior juniors.

The fee for each hearing unit includes an element for preparation, including conferences. It was agreed with the Bar Council that a separate single payment would also be made for conferences. Barristers can claim the maximum uplift relevant to the case for the conference. Following consultation, my noble and learned friend the Lord Chancellor increased conference fees by over 25 per cent. We should contrast that with the position involving conferences in the criminal graduated fee scheme—conferences are rarely paid for.

The rates set within the scheme were of course the subject of intense consultation. My noble and learned friend initially proposed rates that would have resulted in an estimated reduction in the amounts paid to the Bar for family work of between 10 per cent and 20 per cent. Following consultation, the reduction is now 5 per cent. The additional funds that have been placed within the scheme reflect the great importance that my noble and learned friend places on family work. I take this opportunity to express to the House the high opinion that the Government have of the work that solicitors and barristers do in this vital field.

In proposing those rates, the Lord Chancellor had full regard to the responses to the consultation process. I say in particular to the noble Lord, Lord Kingsland, that he carefully considered the factors that are set out in Section 25 of the Access to Justice Act 1999. That Act provides that, in setting rates, the Lord Chancellor must consider: first, the supply of competent legal practitioners who are willing to do the work; secondly, the cost to public funds; and, thirdly, the need to secure value for money. I shall briefly set out the thinking behind our decision as it relates to each of those three factors.

First, I turn to the supply of competent legal practitioners. The number of barristers increases year on year and, as noble Lords well know, there is intense competition to enter the profession. Advocacy in between 70 per cent and 80 per cent of family cases is provided by solicitors, so the number of cases in which counsel is used is already a minority. The number of publicly funded family cases as a whole is also decreasing. That reduction is nothing to do with legal aid; it is the result of wider changes in society. Taking those factors into account, we have no reason to believe that there will not be sufficient competent legal practitioners available to do publicly funded work.

The second factor involves the cost to public funds. About £62 million was paid to barristers in 1999–2000 for family work. The average payment made to barristers has continued to rise year on year. It has risen by 12 per cent in the past three years alone. We have become increasingly concerned about the very high payments that have been made to some barristers in some family cases. I shall give two examples. In a recent care case in the High Court, which lasted for nine days, a Queen's Counsel was paid £14,500 for the hearing alone. Total payments to him or her—I know not which—for the case were £41,000. In a similar case that lasted for 10 days, a junior barrister was paid more than £10,000 for the hearing and £13,000 in total.

In the context of a controlled budget for the Community Legal Service, rising payments to the Bar mean that fewer people can potentially be helped. We believe that a graduated scheme for family work is essential to control expenditure. I hope that we have the support of the other parties in our belief in a graduated scheme. We also believe that the level of fees that is set out in the regulations is fully justified.

Finally, I turn to value for money. Much of what I said about the cost to public funds also applies in this regard. It is perhaps worth pointing out that the fees that barristers will be paid are still significant in comparison with the rates that are paid to many other professionals. We estimate that a barrister will still be paid more than £2,000 for a public law children case involving three days in court. Even allowing for considerable professional expenses, that is still a generous remuneration.

We have heard much this evening about the true reduction in rates that the scheme will produce. It is true that it is difficult to predict the exact reduction. There are two reasons for that. First, we are comparing two very different payment systems. Secondly, much will depend on the way in which barristers and judges operate the scheme in practice. However, the 5 per cent reduction in overall income represents the best estimate of analysts from both the Lord Chancellor's Department and the Bar Council. It is likely that, in practice, the reduction will be far less or eliminated entirely. I think it right that we should be prudent where public money is concerned. I have already mentioned the changes we have made to reward more complex cases.

I should tell the House that it had been agreed between the department and the Bar that a 10 per cent buffer should be introduced to the rates to take account of any leakage. In fact, there is no buffer that has been accounted for in the fee level and so we think it quite likely that the majority of the 5 per cent cuts in rates will be swallowed back into the scheme.

Nonetheless, because of the uncertainty in the new scheme, the Lord Chancellor has agreed to a review after 12 to 18 months. That will look at level of rates paid within the scheme on a cost per case basis to determine the actual results of the scheme on income to the Bar. Following the review, the Lord Chancellor will consider whether more money should be put into the scheme or if fees should be further reduced in the light of the actual impact and the supply of barristers undertaking publicly funded family work. Officials have already invited members of the Bar to meet to discuss the terms of reference for the review.

I shall say something about the comparison between the fees paid to solicitor advocates and the fees paid to barristers for family work. Solicitors recently benefited from an average increase of about 10 per cent in their rates. I make three points about that. First, solicitors have always been paid on an entirely different basis to barristers. Solicitors have been subject to an hourly rate regime for many years. Those hourly rates have not been significantly increased for the past eight years. Since January 2000, solicitors have also been subject to the additional controls imposed by contracting. It is notable that the average payment to solicitors for family work fell in 1999–2000, whereas the average payment to counsel increased.

Secondly, it is difficult to compare the fees that will be paid to solicitors with those that will be paid to barristers because the schemes are entirely different. One should take account of the fact that many family cases run shorter than expected. Within the graduated fee scheme, a barrister involved in a main hearing will be paid for a full day in court, even if the case settles after an hour. In addition, he may be paid a settlement supplement, which could double his hearing fee. In contrast—and this is an important point—a solicitor advocate will be paid only for the hour's work.

Thirdly, we shall be collecting data about the rates paid to solicitor advocates for family work so that proper comparisons can he made.

Before I finish, I cannot resist the temptation to comment on the fact that the attack on the Government's graduated scheme for family barristers comes from the Conservative Party in this instance. It seems to me that that is a remarkable place for it to come from at this particular time. I am disappointed that the Conservatives are attacking the controls that we are introducing. It was the previous government who started the introduction of graduated fees. They did well with them and we are continuing the policy because it is the right one.

But it goes further than that. I refer to what was said by the honourable Member for Harborough, Mr Edward Garnier, who speaks on legal affairs from the Front Bench in another place. He said that the Conservatives are to do away with the Community Legal Service, replacing it with a contingency legal aid fund, a CLAF. But everyone knows that family cases cannot work within a CLAF as very often no orders for costs are made and both sides can properly receive public funding. Those are part of the Tory cuts—£525 million to go back to the Treasury. That is money which is presently used to purchase and pay for important services, including fees for barristers doing family law cases. The money cannot be spent both on family Bar fees and returned to the Treasury as a public expenditure cut. Under those proposals, there would be virtually no money available to pay graduated fees to barristers undertaking family law work within the Community Legal Service. That is a consequence of the abolition of the CLS and the return of the money to the Treasury.

I trust that the House will accept that it would be difficult for any noble Lord promoting that policy legitimately and with conviction to raise concerns about the level of fees payable under this order. It would be a classic case of attempting to ride two horses at the same time, potentially disastrous and certainly extremely embarrassing.

I do not suppose that I have persuaded those who have spoken in the debate of the merits of our graduated fee scheme. I have taken some time and done my best to explain what our scheme is about. We are much more optimistic that the scheme will work. If it does not, the review which will take place within a comparatively short time will tell us that. That is why we have said that there will be a review within 12 to 18 months. However, the Government are optimistic that the graduated fee scheme will be to the benefit of everyone: the barristers involved, the clients and, above all, the taxpayer.

Lord Kingsland

My Lords, I thank the noble Lord, Lord Bach, for his response to my Prayer. I shall resist the temptation to respond to the final stages of his speech about Conservative Party policy. Those matters and that style of robust repartee can wait a few weeks until the election campaign begins. In any case, the issues which are connected with the subject of my Prayer tonight are too important for the kind of political exchanges into which the noble Lord sought to tempt me.

The Conservative Party has no difficulty with the principle of graduated fees; indeed, we welcome it. Our concern with the graduated fees which are contained in the Government's order is not with the principle but with the levels and the circumstances in which uplift applies. I was heartened by one part of the noble Lord's speech; that is, his undertaking to keep the system under review, and before establishing the nature of that review to engage in discussions with representatives of the Bar Council.

I wonder whether I can ask the Minister to be more specific as to how he sees the review operating. Will he be setting up a special team in the Lord Chancellor's Department to keep under constant review the system of graduated fees for family practitioners? Will representatives of the Bar Council be engaged in such a review? Will the results of such monitoring be made public? Finally, will be commit himself to a specific period, either 12 or 18 months, by which time the Government will have reached clear conclusions about the effects of the new scheme on remuneration, which they will make public and act upon if the scheme appears, as I suggest it might, to be in breach of Section 25 of the Access to Justice Act?

Lord Bach

My Lords, perhaps I may seek to answer the very fair questions raised by the noble Lord. It is right to say that the new scheme will not come into play for anything other than new cases for which certificates are granted after 1st May. The first few cases that are finished will be the shorter cases rather than the longer ones. I do not think that the noble Lord will be surprised by the fact that we are caking a little time before the review begins, otherwise it probably would not be a fair review in any event.

We still have to meet with the Bar at official level to discuss exactly what form the review will take and the requirements for data collection for management information on the scheme. The noble Lord will not be surprised to hear that data will be collected by the Legal Services Commission each month. However, it will take us some time to get sufficient data to arrive at sensible conclusions. The results will be shared with the Bar.

At present I cannot go further than that, but perhaps I may make a general point. Of course, there are disagreements between the Bar and the Government on this issue.

I should like to pay compliment to the Bar Council and its leaders on the way in which they have dealt with this matter and with the difficult and sensitive negotiations that take place with government. It has looked after the interests of the Bar as it has seen them and has debated in a fair and proper way both the scheme that we are introducing and what happens afterwards. I should like to thank the Bar Council for that.

Lord Kingsland

My Lords, I take some encouragement from what the noble Lord said. However, he will be aware that for the next few months both the noble Lord, Lord Goodhart, and myself will be watching his department closely in order to see how the developments he has drawn to our attention are put in place and what results from them.

In normal circumstances, I should have wished to divide the House on this matter. However, in view of the time and wider considerations of a political nature which I have been compelled to take into account, I shall not do so. I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.

House adjourned at twenty-six minutes past ten o'clock.