§ 4.7 p.m.
§ Lord Phillips of Sudbury rose to call attention to matters which may inhibit access to justice; and to move for Papers.
§ The noble Lord said: My Lords, legal aid has been a prevailing passion of my legal life. I was co-founder and first chairman of the Legal Action Group in 1972, did legal aid work from the start of my career, and my firm only ceased to do it in May of this year for reasons that I shall highlight later.
§ One of the most telling marks of a good society is the way in which it treats those without the wherewithal to maintain their legal rights. One of the landmarks of the post-war Labour government was the Legal Aid Act, which gave 80 per cent of households access to legal aid. That proportion was still 70 per cent in 1979, and now probably languishes somewhere around 40 per cent.
§ The subject of the debate is not, however, confined to legal aid. It is drawn so as to provide a wide canvas for contributions of noble Lords. Access to justice is significantly related, for example, to the 12,000 to 13,000 pages of new laws which we pour out from this House and the other place every year. This output is simply indigestible and overwhelming. It turns citizens into subjects. It is also one reason why the cost of legal aid overall, and per case, rises, particularly in the criminal sphere: from £1.5 billion in 1997 to £2 billion now. For example, this Government have created over 600 new criminal offences since they came to power, and have just announced a policy to encourage nearly 20 per cent more prosecutions. Those policies and these laws have a direct impact on legal aid.
§ Another inhibition on the access to effective justice is the continuing breakdown in community cohesion. That is why recent legislation, centralising the administration of the courts system and reducing the ability of justices of the peace to run their own show, is counter-productive. It means the continuing closure of local courts, which directly diminishes geographical access and local ownership of the courts, and causes loss of local knowledge by the Benches.
§ When I first entered the House six years ago. I was confronted with the Access to Justice Bill, championed by the then Lord Chancellor, the noble and learned Lord, Lord Irvine, assisted by the present Lord Chancellor, the noble and learned Lord, Lord Falconer. So much of the long and hard-fought debates was a form of shadow boxing, with Ministers who had little or no first-hand experience of legal aid, advised by a huge team of civil servants, none of whom, I ascertained, had any such experience. They argued from principle and theory, as I saw it, with many of the rest of us endeavouring to argue from unaccommodating reality. That their intentions were admirable, there is no doubt. That there were serious problems with legal aid also is undeniable, particularly the escalation in cost. In what follows I do not want to belittle the continuing difficulties let alone crow, "I told you so" in relation to those debates, although I certainly could.770
§ As there is sharp disagreement about the current state of access to justice, I shall seek primarily to analyse the real position, although in doing so I will of course point the way to improvements.
§ We accept that the cost of improved legal services has to come from somewhere and that it will invariably compete with other pressing needs. It also has never been part of my approach to claim universal competence for my profession. Any scheme has to deal with defects. But somewhere along the line the combination of too little first-hand management, dirigiste managerialism plus an excess of bureaucratic interference have brought us to the present pass.
§ That in short is a legal aid scheme, or community legal service, where demoralisation among solicitors and other legal advisers who serve it is now very general; where the provision of legal advice and assistance is very patchy and the talk is of deserts; where the eligibility criteria for help are too stringent; and where the whole scheme is dominated by criminal legal aid to the detriment of the civil sphere.
§ Perhaps I may give a few statistics which are relevant to the debate. I have already mentioned the growth in the legal aid budget over those seven years. However, in view of the massive increase in laws, crimes and the rest of it, the £1.5 billion to £2 billion might be thought not enough let alone too much. Some £1.1 billion of the £2 billion is spent on the criminal legal aid budget, leaving less than £900 million for the civil budget. That budget is split 93:7 between solicitors in private practice and not-for-profit entities. One million people were helped last year by legal aid, compared with 3.5 million in 1997, when the green form advice scheme was still available. The number of civil cases is 8 per cent down; criminal cases, 18 per cent up. The cost per civil case is 3.4 per cent up; per criminal Crown Court case, 9 per cent up. In 1990, 30 per cent of solicitors' income derived from legal aid. That figure is now down to 13 per cent and falling.
§ The other point that I would briefly mention is that there are 70,000 solicitors in private practice today, 85 per cent of them in firms of four partners or fewer, comprising more than 9,000 firms and nearly 13,000 offices. The budget for legal aid is about 5 per cent of the budget for the National Health Service.
§ I turn briefly to the very recent independent review—published on 1 April—of the Community Legal Service, commissioned by the DCA and done by Matrix/Sheffield University and Richard Moorhead. To be fair, they said they were "impressed with progress made" in establishing and developing the Community Legal Service. However, they pointed to five areas where improvement is badly needed, one of which was clarification of the aims and strategy of the CLS, particularly in relation to social exclusion. They called for an evidence base for the Legal Services Commission policy on, for example, its selection of not-for-profit providers as compared with private practice providers, and specialist providers as compared with generalist ones.
§ The reviewers called for much better processes, to which I shall return. They concentrated on quality, which they found severely lacking—an issue to which 771 I shall refer later. They then looked at the localised impact of the work of the legal aid scheme and had a lot to say about community legal service partnerships, which are in a bad way.
If there is one problem above all others that needs to be urgently addressed it is that of withdrawal of solicitors from the Community Legal Service. As I have explained, they are the predominant suppliers. As of 1 April, according to the independent review, there had been an 18 per cent drop in the number of contracts awarded under the Community Legal Service since the first award three years ago. In the latest tendering round there was a 10 per cent reduction in the number of contractors applying for contracts. Although the Legal Services Commission states that it will be able to find suppliers for all the contracts it needs, the fact remains, as Keith Vaz MP put it to the Constitutional Affairs Committee on 24 February:
We have a legal aid crisis … solicitors are deserting legal aid in droves. It simply does not pay for them".
Mr Vaz was, of course, involved in the Access to Justice Bill as a Minister.
A very telling section in the forceful written evidence by the Law Society to the same committee, which is inquiring into legal aid and will shortly publish, I believe, was this:
There has been a marked decline in the morale of legal aid providers. In 2003 the Society embarked on a nationwide consultation … to hear directly from legal aid practitioners about their assessment of problems on the ground and their ideas for an improved system. What emerged was a picture of great dissatisfaction with the way the system was operating. The predominant feeling was that the Government was running the legal aid system into the ground and legal aid practitioners expressed great doubts about being able to continue to provide a service for their clients".
The society concluded by saying,
on current trends the prospects for the future of publicly funded legal services are bleak. Those providing legal aid are a comparatively elderly cohort of the profession. The enormous gulf in earnings prospects between those in commercial firms and those in publicly funded work means that despite their social conscience few newly qualified solicitors feel able to pursue a career in legal aid firms or the not for profit sector".
The earnings differential is 100 per cent to 200 per cent and in some cases 300 per cent.
§ From its research this year the Law Society found, and I can vouch for this, that about half of all trainees would like to expect to do legal aid, along with non-legal aid work, but only about one in 12 is likely to do so. Few legal aid firms are even able to afford trainees at all, and the system is dying at the roots. The brutal fact is that with legal aid rates frozen for so long, against a backdrop of the costs of running a legal practice running ahead of general inflation, the viability of doing legal aid continues to be undermined and destroys the goodwill of solicitors.
§ The Government should not pretend that the practitioners who have left legal aid can be easily tempted hack or that the gap can be adequately made up either by technological novelties, supermarket methods or—the greatest and fondest hope—by putting ever more burden on the not-for-profit sector. 772 That was the hope of the 1970s, yet today there are fewer than 100 law centres, wonderful though they are, and even the 1,000 or so citizens advice bureaux cannot match the 12,700 solicitors' practices. Moreover, the CABs will soon tell you that their effectiveness depends partly on partnership with their local practitioners from whom they can get pro bono help and to whom they can refer difficult cases.
So as the CAB and the Law Society's recent evidence manifestly shows, growing deserts of legal aid availability now exist. Ross Cranston MP QC, former Solicitor-General, gave evidence to that effect before the Constitutional Affairs Committee, making the point that,
the argument might he that"—
his constituents in Dudley—
have to get on the bus or train and go off to Birmingham, but culturally that does not happen".
The independent review said that the,
near unanimous view is that serious gaps in service provision exist across the country".
The detailed work by the Law Society and CAB makes that abundantly clear.
§ I should like to say a quick word about telephonic advice, as a great deal of hope is put upon the shoulders of that type of advice. For 10 years I was a non-executive director of the second biggest telephone legal advice provider in the country. We employed fleets of law graduates and a few solicitors. However, those services, as admirable and important as they are, and though they serve as entry and initial advice points, are of very limited use, particularly in cases of any complexity or where the client has difficulty in analysing their own problem, let alone communicating it over a telephone.
§ So of all the things that have been identified by the Law Society, the Legal Aid Practitioners Group, the Legal Action Group, citizens' advice bureaux, the recent independent review and others, as inhibiting access to justice, at the root are two things. The first is levels of eligibility. It is notable that the Legal Services Commission's own research finds that almost 40 per cent of people asked had a serious legal problem where they needed help, but only one out of five of those people received it.
The second is the availability of accessible, appropriate advice. Apart from rates of remuneration, and more important, I suggest, there is the issue of the LSC method of running and auditing its contracting system. I have cited the DCA report, which calls the process,
over-complex, burdensome, costly and bureaucratic",
and have referred to its conclusion about the inadequacy of quality monitoring. When Philip Ely, the chairman of the Legal Services Commission, gave evidence to the Constitutional Affairs Committee, he said:
The processes in which we are engaged measure process as much as anything. They do not measure quality of advice".
That makes a mockery of the constant assurances that we have had from Ministers, including during the passage of the Access to Justice Bill, that it is quality
at which all these reforms are aimed. It is rather like marking the performance of the English football team not by the result but by how many shots at goal it had.
§ The operational comparisons by the LSC of the legal profession with supermarkets and with Nissan plc, which were given as examples by Clare Dodgson, chief executive of the LSC, to the Constitutional Affairs Committee, does not warm the hearts of the legal profession.
§ To summarise, eligibility must be grappled with. If we purport to have equality before the law and a national advice service, we must live up to it and provide the wherewithal. Remuneration must be the subject of an independent review board. Paperwork must be slashed. Quality must be assured not by a paper chase but by peer review. We must ring-fence civil legal aid. We must ration not by case starts but by criteria governing the scope of and eligibility for legal aid. We must restore local justice. We must maintain innovation—as I readily accept that the LSC has done—and we must accept, above and beyond all else, that the legal aid scheme and the money put into it is an investment in the fairness, justice and effectiveness of our society and that money spent in that direction can prevent a great deal more expenditure further down the line. I beg to move for Papers.
§ 4.23 p.m.
§ Lord Borrie
My Lords, it is always a pleasure to follow the noble Lord, Lord Phillips of Sudbury. The thoroughness of his preparation, combined with the vigour of his presentation, make him always a joy to hear. I am glad that he took a broad attitude to the concept of access to justice, because I think that the matter is a good deal broader even than he described in his speech.
In the 1970s, a massive, four-volume book was published entitled, Access to Justice, edited by Mauro Capelletti, professor of law at the University of Florence and at the University of Stanford in California. It was a comparative study across the world. I contributed a small piece discussing some of the early alternative dispute resolution procedures that were beginning to develop in the United Kingdom. A number of other countries had experimented much more widely, and in the UK since the 1970s, we have come quite a long way.
The noble Lord will recall that the county courts had been set up in 1846 as a practical, low-cost method and machinery for obtaining redress for small businessmen and private individuals. However, subsequent to 1846, the county courts had become dominated by lawyers and complex rules of procedure so that, by the 1970s, we saw the beginnings—very useful they were—of the small claims procedures within the county courts, which were genuinely low-cost and avoided the risk of paying the fees of the opponent's lawyers if the case was lost. That general rule of having to pay the costs of the winning side's lawyers is one of the greatest inhibitions to access to justice, and has been with us for so long, but it does not apply in small claims procedures in the county court.
774 During the same period, various trade bodies, such as the Association of British Travel Agents, devised low-cost arbitration schemes, of which disappointed consumers could take advantage, and the statutory public sector ombudsmen schemes, which were introduced during the 1960s and 1970s, were replicated by private sector ombudsmen schemes, enabling consumers to seek redress at no charge. Mediation was yet another developing option.
Last month, the Better Regulation Task Force, which usually receives wide support and interest in this House, published a report entitled, Better Routes to Redress. It made a number of sensible recommendations to make those various useful redress or access to justice schemes to which I just referred more comprehensive and effective.
The Government seem keen on ombudsmen schemes and developing them further. For example, a scheme for student complaints is set out in the current Higher Education Bill; a judicial ombudsman is planned; and an ombudsman to oversee the new pension protection fund is in the Pensions Bill now going through the House. Members of this House will know, having considered only a few years ago the Financial Services and Markets Act 2000, that the biggest ombudsman operation so far is probably the private sector financial services ombudsman scheme. It has a considerable caseload. Not unnaturally, it is led by a solicitor and it has already been shown to be very useful.
As an aside, not all private ombudsman schemes have statutory backing, and there is a problem with some of the non-statutory schemes. If a trade organisation sets one up for a few years and some of its members do not like some of the outcomes, it can be brought to an end. That happened a couple of years ago to the funerals ombudsman scheme, which many people found useful. It was brought to an end, allegedly for financial reasons.
The noble Lord, Lord Phillips, will be well aware that a couple of years ago the noble and learned Lord, Lord Woolf, who was at that time head of civil justice as Master of the Rolls, paid considerable attention to alternative dispute resolution schemes when he undertook his thorough review of the civil courts system. He recognised that access to justice, to use the phrase used by the noble Lord in his Motion, can take many forms other than the most obvious one of litigation in the ordinary courts. He also recognised the advantages that small claims and ombudsmen procedures have of being more informal, less adversarial and possibly needing less attention from lawyers.
However, I would say that enthusiasts of alternative dispute resolution schemes—and I count myself one of those—must be watchful both when they are set up and later to ensure that the rules of natural justice and the provisions of the Human Rights Act 1998 for a fair trial are adhered to. After all, we are all today talking about access to justice. All sides in a dispute must feel that fair procedures are conducted by an independent body or person, whoever that may he, especially when they do not take place in the familiar, ordinary courts.
775 The courts will remain the main forum for major disputes, especially between parties of substance, regarding the matter of claiming redress for wrongs, including breach of contract. However, many kinds of alternative dispute resolution schemes for small claims are essential if people are not to be left without access to justice, apart from the theoretical option of going through court procedures that they cannot afford. The briefing that I received from the Law Society—the solicitors' side of the profession—rightly says that access to independent legal advice is one of the fundamental rights of citizenship. Who would deny that? Surely, we must all be in favour. But if we over-rely on the ordinary courts as the main machinery through which justice is obtained, the legal aid bill is likely to rise to excessive proportions.
My message to the Department for Constitutional Affairs—a title that I am not yet used to—is that if, as a new department, it is looking for a motto, it should be, "let a thousand flowers bloom".
§ 4.31 p.m.
§ Lord Hooson
My Lords, the Motion in the name of my noble friend Lord Phillips of Sudbury is broad. It provides the widest possible scope for debate on matters which may inhibit access to justice. Therefore, I shall not follow up the matters raised by the noble Lord, Lord Borrie. While I listened to him with great interest and have read the papers sent to me by the Law Society, the Bar Council and so on, and because I ceased practice at the Bar 13 years ago and am rusty and out of touch, I shall confine myself to matters that inhibit access to justice in rural areas such as mid-Wales, where I live, and north Wales, which I know well. Those two areas and other similar areas seem to be suffering from a so-called process of "rationalisation" in the provision of courts and other concomitant facilities, without sufficient regard to local requirements or heeding the views of responsible local magistrates, legal practitioners, local councils and so on.
In July 1997 the then Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, in a speech to the council of the Magistrates' Association said, among other things:I know that some of you have expressed a fear that the provision of local justice may be lost in the drive for efficiency. Let me assure you that your fear is misplaced.Was it? In a Statement to your Lordships' House the noble and learned Lord sought to provide further reassurance. He said:I am committed to local justice. Many decisions, for example about providing court-houses to match need, will properly remain to be taken at local level".But here comes the rub. He continued:But justice delivered locally is not the same as justice organised locally". —[Official Report, 29/10/97; col. 1059.]Clearly, he did not intend that locals be entrusted with such organisation. He would leave that to be decided centrally, organised by the Lord Chancellor's Department.
I have two examples of the problems that have arisen. I shall quote from an article by Mr D Cwyfan Hughes of a well-known firm of solicitors in Holyhead, who pointed 776 out that the North Wales Magistrates' Courts Committee published a draft strategic plan in August 1996. Its overall aim was to,provide an effective system of local justice".However, it has recently been decided that there should,be offices only at Caernarfon, Llandudno and Wrexham to serve the whole of North Wales area and that all other Court offices shall be closed",including that at Holyhead. The article continued:The Courthouse and the Magistrates' Clerk Office at Holyhead are housed in the same building. There are also designated rooms for the Probation Service and the Crown Prosecution Service. In fact, the Courts' administration for the whole of Anglesey was based at the Holyhead Office … The police station is one of the busiest police stations in North Wales. The security arrangements regarding the holding and transport of prisoners is satisfactory at Holyhead only. In excess of two million passengers pass through the Port of Holyhead annually. The busy court sits 3–4 times a week".Yet it has been decided to close the Holyhead court office. No doubt administrators looking at a map might not have appreciated the importance of Holyhead's position vis-à-vis Ireland and the rest of north Wales.
Turning to my own area of mid-Wales, consequent on local government reform by a previous government, a huge, unwanted, unmanageable county was created called Powys, abolishing the historic counties of Breconshire, Radnorshire and Montgomeryshire. That move completely ignored history, geography, loyalty, transport facilities and patterns. Trading links follow the river valleys in mid-Wales and are often east to west, rather than north to south. Transport facilities have to be examined regarding the plans for courts in mid-Wales. There are very few railways or facilities for travelling. In the old days I have no doubt that the police, who were more co-operative because they were rightly better regarded, would facilitate the carrying of defendants to court.
My noble friend Lord Livsey is anxious to follow up that point about the courts in mid-Wales, because access to justice is being severely restricted there, particularly in Powys. Much of that is related to geography and history. Only four magistrates' courts are left in Powys. Arrangements were in train for a multi-purpose courts centre at Newtown and there is a perfectly good courts centre in Brecon. I agree that when all the facilities are in one building—the High Court, the county court and so on—that should be done. For example, there was a magnificent court building in Brecon, where I used to attend assizes many years ago. Apparently, the proposal for it to he the main building has been put aside and, to the astonishment of magistrates and local councils, there was a plan from the Lord Chancellor's Department to establish a new court complex in Brecon on the outskirts of a new development.
What has happened to the proviso of the Lord Chancellor that decisions on such matters are to be taken locally? Unless that is done, magistrates, police and so forth will find difficulty in getting to courts. The LDC must pay far more regard to local opinion. Some years ago, it was proposed that Llandrindod Wells 777 offenders should be brought to Newtown or vice versa. That is nonsense when one considers the distances involved and the lack of public transport in that area.
I raise the matter today because the assurances given by the Lord Chancellor to this House and to the Magistrates' Association have not been fulfilled and it is time they were.
§ 4.41 p.m.
§ Lord Donaldson of Lymington
My Lords, today's debate is about matters which may inhibit access to justice. The noble Lord, Lord Phillips, says he is happy for it to go wider and I believe that it should do so. The real subject for debate today should be "the provision of justice" and "justice as a public service".
On the news last night, it was said that both the Prime Minister and the Leader of the Opposition were urgently turning their attention away from Europe and towards the provision of public services. They meant, of course, education, health and public safety. But why not justice? In the development of all civilised societies, the development of some system of justice, rudimentary though it may be, came a long time before consideration was given to health or education. That was not accidental. It was of supreme importance and it remains important to this day.
It has to be a system which is available to all on equal terms. That is of the essence of any public service. And this also creates a major problem for the justice system in this country. As we all know, it could not begin to cope if any significant number of cases were brought or defended by litigants in person.
Perforce the courts have been obliged to enlist the assistance of a corps of people whose task is to assist the court by investigating and presenting cases to the courts. We call them "litigation lawyers", although they would not necessarily have to be lawyers, provided they were properly trained and subject to proper professional supervision. Essentially, they are performing a function which is part and parcel of justice as a public service. This is emphasised by their own and the courts' insistence that, in case of conflict, their duty to the court overrides their duty to their clients.
Logically, this would meant that all or part of the expense of employing litigation lawyers should in all cases be met by the public purse. I do not go as far as that, but I want to draw attention to the extent to which we have gone, and are increasingly going, in the other direction. It is a wholly one-sided public/ private partnership.
Magna Carta contains an undertaking by the King not to sell justice to any man. This referred, of course, to the sale of justice on a selective and corrupt basis. Today, the state sells justice not on a corrupt but on a wholesale basis. We have arrived at a pay-for-it-yourself system of justice.
That is no exaggeration. Under the Government's present policy, litigants are charged fees intended to recoup the cost of the court rooms, the cost of the court service and even the salary of the judge. In addition, 778 they have to meet the cost of employing litigation lawyers unless they are resorting to the small claims court which, to its great credit, is designed to cope with do-it-yourself litigants.
No doubt we shall be told that there is legal aid and that court fees can be remitted in extreme circumstances. But eligibility for legal aid is continually being eroded either more or less arbitrarily or in favour of any other system which avoids the involvement of the public purse, such as conditional fees.
Today's practitioners may not be aware that when legal aid was first introduced there were few no-go areas. I believe that defamation was one. Eligibility was very generous by current standards, as the noble Lord, Lord Phillips, pointed out. Litigation lawyers from both sides of the profession were paid at market rates less 10 per cent. It was both simple and fair.
It seems to me that the time has come when serious consideration should be given to setting up a Royal Commission or some such independent and informed body. It should be invited to review the whole system of justice as a public service. Meanwhile, claims such as that 50 per cent of the criminal legal aid budget goes on 1 per cent of heavy cases for the benefit of "fat cat lawyers" are inaccurate, irrelevant and stupid.
The true comparison is between the degree of skill involved and the time spent on preparing and presenting the totality of the heavy cases as compared with that attributable to the totality of the run-of-the-mill cases. I do not know what the answer would be, but I know that it would be nowhere near the quoted figures. Nor, wherever the fault may lie, is it seemly that informed discussion on fees between the Government and the profession should be replaced by what appears to me to be oriental bargaining.
I welcome the debate and hope that it may be followed up by some action.
§ 4.47 p.m.
§ Lord Williams of Elvel
My Lords, I am grateful to the noble Lord, Lord Phillips, for introducing the debate. I am afraid that my noble friend Lord Filkin may find himself in some crossfire from mid-Wales. The noble Lord, Lord Hooson, spoke about the problems of mid-Wales and I believe that the noble Lord, Lord Livsey, will address them. I, too, will do so because the problem in mid-Wales is possibly a paradigm for how magistrates' courts shut down all over England and Wales are depriving access to justice for those who cannot afford to pay. It is a problem which my noble friend must address.
First, I want to declare a non-financial interest. I am patron of the Llandrindod Wells Spa Town Trust and as such I have an interest in Llandrindod Wells. I gave my noble friend notice of the points I would make and I wrote to my noble and learned friend Lord Falconer on 6 June this year explaining what I was about and what I would say. I therefore hope that he has considered all those points and will have a substantive response to those of us who object to the closure of the Llandrindod Wells magistrates' court.
779 The noble Lord, Lord Hooson, expressed the problems perfectly well. The first is the geographical distance that defendants and witnesses may have to travel if the court is closed down—namely, to Brecon or to Newtown—is such as to deny them access to primary justice. There is no convenient public transport and there is no private transport of any convenience. Some time ago that difficulty was put to Yvette Cooper by a delegation from the town council of Llandrindod Wells.
I hope my second point is recognised by my noble friend. I believe that a considered view of our party—it is perhaps one of those views that I would support more than others—is that we should encourage local community spirit. As Llandrindod Wells is the site of the main office of the Powys County Council and as it has been designated as one of the towns in mid-Wales that is to be developed and enlarged, the spirit of the community is all the more important.
To be perfectly honest with my noble friend, I have been surprised how strong the feeling is about the magistrates' court in Llandrindod Wells. People come up to me in the street, as I am sure they do to the noble Lord, Lord Livsey, and say, "Why is the court being closed down?". It is a matter of community. It is a central mark of status in an important regional centre.
Apparently Yvette Cooper was sympathetic to the delegation's arguments, but pointed out that it was up to the Powys County Council to put forward proposals to maintain the court in Llandrindod Wells. The parish council apparently felt that if it did so, it risked financial assistance being given for new premises in Newtown. Frankly, that argument falls down in the face of the denial of elementary access to primary justice by those members of the community in and around Llandrindod Wells who cannot afford to go to Brecon or to Newtown. It should not be beyond the wit of man to tell the parish council in one form or another to revise its plans, even if it means a marginal increase in costs.
I am sure that I do not have to emphasise to my noble friend how important this matter is in mid-Wales and in Llandrindod. After all, it is a growing town. We believe in a community spirit. It has status. Llandrindod has a community spirit and that should not be wilfully set aside.
§ 4.52 p.m.
§ Lord Livsey of Talgarth
My Lords, I welcome this opportunity to speak on access to justice. I thank the noble Lords, Lord Hooson and Lord Williams of Elvel, for raising the subject of access to justice in Powys. My contribution will relate mainly to the denial of access for the whole of Radnorshire. It will result in some of the poorest people in the most sparsely populated area of England and Wales being faced with a 60-mile round trip to a court where little or no public transport exists. In geographical terms it is the equivalent of making the people of west London attend court in Reading, but with no public transport to get there.
780 I believe that the urban decision makers need a geography lesson. Radnorshire and central Powys are parts of the county of Powys. I declare an interest in that I represented the constituency of Brecon and Radnorshire in the other place. It is the third largest constituency in the whole of the United Kingdom. Powys, if transposed to southern England, would stretch from the Severn Bridge to Hammersmith Flyover, a distance of 130 miles. Powys is the most sparsely populated area of England and Wales, three times more so than Cumbria, the most sparsely populated county in England. In that respect it is equivalent only to the Highlands of Scotland. In the past 20 years, 16 courts have been closed in Powys. They range from Presteigne, Crickhowell, and Llanwrtyd and I could name many others.
The old counties to which the noble Lord, Lord Hooson, referred of Montgomery, Radnor and Brecon, are now administered through three shire counties, which are under the umbrella of Powys County Council. The current proposal is for magistrates' courts to be reduced to two in the county. There were six and then five; Newtown has one, but it is not being used at present. We shall be faced with two courts 60 miles apart. That will leave only two courts in Powys which occupies between a fifth and a quarter of the whole of the land area of Wales. Of course there are courts in Brecon and Newtown, but it leaves only one court in Montgomeryshire, the old county, one in Breconshire and no court in Radnorshire.
The result is that Radnorshire people cannot get to court, as the noble Lord, Lord Williams of Elvel, has stressed. Defendants and witnesses cannot get to court on time and there is a deprived population with only 76 per cent of average EU gross domestic product, many of whom are elderly and infirm. Solicitors on legal aid cases are reluctant to travel more than 20 miles. There is outrage in local communities at these proposals.
All Radnorshire county councillors support the retention of Llandrindod magistrates' court and today county councillors Margaret Morris, the retiring chair of the Radnorshire committee, and Fred Barker have brought with them a 3,500-name petition to support the continuation of the Llandrindod court. The people who have signed the petition rightly feel that their human rights are threatened.
I want to address the process of how this came about. It does not do credit to the system. I believe that this is the case in many other areas of the United Kingdom. The proposal to reduce the number of courts to two came from the Dyfed Powys Magistrates' Court Committee which has now been abolished as a result of the Courts Act 2003. The magistrates' court committees have been replaced by courts boards, provided for in Part 1 of that Act. My complaint is that Powys County Council members were hoodwinked and coerced into supporting only two courts in Powys by the threat of the withdrawal of funding for upgrading of the two courts in Brecon and Newtown if they opted for a third court in Llandrindod Wells.
781 I quote Powys County Council minutes in which Mr Peter Townsend, the former chief executive of Dyfed Powys Magistrates' Court Committee,confirmed that travel to the two Courts was a major consideration for the Magistrates Court Committee but legislation required that there be better accommodation and access issues but that the funding issue would prohibit the retention of all Courts"—I underline "all courts"—currently within the County".The minutes go on to say:He advised Council that if all Councils in the Dyfed Powys area were not in agreement that the bid should be made the finance of the proposals would therefore fall and the current buildings would by virtue of the legislation be taken out of use and the administration of justice within the County would then become uncertain".The councillors were faced with that in their decision making.
What is perhaps even worse is that the local MP, my successor, Roger Williams, was sent an e-mail from the clerk to the magistrates' court which said:The procurement of the two Court Houses for Powys has reached a critical stage. If it is undermined now, then the investment which is planned for Powys will be lost. The support of the Local Authorities has been critical … the achievement of this investment and any wavering of this support could be fatal to both schemes … There is a real risk, that not only will the investment in new Courts for Powys be lost, but the current Court Houses will be closed sooner rather than later because they do not meet the standards required of them. Powys could be left with no effective Court … provision at all".Frankly, that is unacceptable in those terms, but it is what councillors were threatened with by the chief executive of the magistrates' courts committee before they voted on the issue.
I believe that the matter can be resolved. A bullying tactic was used by the clerk of the magistrates' courts committee as I have just described. No councillors on the county councils want to see a withdrawal of funding for Newtown and Brecon courts. However, they were forced into a situation where they had to protect their own areas; the majority of councillors were in Breconshire or Montgomery indeed, Radnorshire's were then outvoted. This is a classic divide-and-rule tactic not worthy of the Lord Chancellor's department.
No appeal could be made to save Llandrindod court. The MCC's strategy worked, denying access to justice to the people of Radnorshire on financial grounds, not on the basis of people's needs. The MCC imposed a flawed system of decision-making on the county. Its arbitrary powers were underlined to me in a letter from the noble and learned Lord the Lord Chancellor, dated 7 October 2003. Now the MCC is being abolished.
People's needs must be foremost; they have a right to an accessible court, to a criminal justice system in their own locality and to a justice system delivered in an affordable, secure local court. Llandrindod court building, which adjoins a police station, is not even owned by the Lord Chancellor, but by the Police Authority. Its budget could easily be used to upgrade the building at a very modest cost.
782 I can quote cases of, for example, a mother whose children were going to be taken into care but who could not get to court because she had no means of transport; witnesses hitch-hiking, trying to reach court on time and often failing; and the cancellation of some hearings due to the inability of witnesses to attend. Do we really want a criminal justice system more akin to a banana republic? I am sure that the new Powys County Council and its chief executive will want to appeal against the closure of Llandrindod Wells court.
However, I need guarantees from the Minister that allocated, existing funding to Brecon and Newtown courts will not be withdrawn as a result of a Llandrindod appeal. The needs of the people of Radnorshire and the accessibility of their court are crucial factors in their own right. The Lord Chancellor has the powers within the Courts Act 2003 to put these matters right, particularly as regards the location of court houses. I interpret, therefore, that he has the power to specify the location of a court. I hope that he will accede to these circumstances in the case that I have made for Llandrindod today.
§ 5.3 p.m.
§ Lord Brennan
My Lords, adequate access to justice involves that it should be available to people at modest cost or, if they cannot pay, with state aid; once they enter the system, its systems should be efficient; and, throughout, they should have the benefit of quality service by lawyers, judges and everyone else. All that costs money, and, in our present justice system, is organised through the Department for Constitutional Affairs.
Expenditure on the system is not, and cannot be, open-ended. It has taken time, and will take time yet, for we lawyers, and perhaps we politicians, to realise that when, a few years ago, the Treasury imposed its own control on the justice system by making the budget of the Lord Chancellor's department clearly and rigidly part of the three-year spending round, from then on the budget for justice in this country would be fixed. It is a very long learning curve for some of us, but it is an important one that we should fully acknowledge. If, as is now a fact, the Department for Constitutional Affairs must work within a budget, then it and we need new thinking.
The first aspect is the budgetary approach, of which I shall give some examples. The PSA target among many for the Department for Constitutional Affairs is that over the next three years it will increase value for money from the criminal justice system by 3 per cent a year: £57 million a year or £171 million over three years a cost that must be saved to reach the Treasury target. Secondly, expenditure on asylum and immigration in the past year was £204 million, much of which was a direct consequence of a policy decision by the Home Office to accelerate decision-making and consequent appeal processes that could not have been forecast by the ministry, which had to foot the bill. Thirdly, criminal legal aid costs generally have risen, particularly in respect of very high cost criminal cases.
Those three examples—budgetary control, an unexpected budgetary upsurge and a criminal justice system costing more and more—present a budgetary 783 picture in which perhaps the thinking should be as follows. First, there should be a review. The ministry has instituted, wisely, a fundamental legal aid review that will carry on throughout this year and report on the best way to operate our legal aid system in the years to come. That shows foresight; I commend it and hope its constitutional role—because it has one—to work for access to justice will be recognised by all its participants. At a secondary level, there is a review of very high cost criminal cases. It is about to report; I will not comment further on it.
The first step—review—is being undertaken; the second step is surely transparency. If you have a fixed budget in a sector in which the demand is permanent and an increase is always sought, it is essential, is it not, that as a ministry you tell the public what is going on, you are open about the budget and are ready to publish the figures and to debate solutions?
Lastly, a most important consideration is that the Department for Constitutional Affairs is not a ministry of justice. It runs the justice system, so it must absorb within its own budget extra expenditure created for it by legislation and policy directives from other ministries over which it has no control. That unique position should always be recognised in debates on the budget for our justice system. Is it not time, perhaps, as the department's own review a month or two ago suggested, that we started thinking about an impact assessment of legislation referable to legal cost, in particular for the Department for Constitutional Affairs? If it is significant, the ministry in question should cater for that cost, wholly or partly, and not leave it to the justice system to be moulded, squashed and squeezed to meet that extra expenditure, which it might not have anticipated.
I wish to make three points. I commend entirely the remarks of my noble friend Lord Borrie about the wide variety of means by which people can have access to justice outside the courts system. But the courts system is the most expensive part of our system and will always be so. Courts are places where rights are recognised and penalties imposed, with enforcement the consequence.
Very high cost criminal cases constitute 1 per cent of the caseload and cost 40 per cent of the budget. That is a bizarre relationship between cost and volume which, I suspect, on a rough estimate, runs at £400 million to £500 million a year.
As a lawyer, I simply do not accept that those cases must continually get longer, more complex and, as a result, more expensive. That simply indicates closed thinking by the people in the system. We have to change. How can we do that? The Financial Services Authority should be given—it now has been given—real effective enforcement powers, just as the SEC has in America. Fraudsters are scared to death of the SEC because they go in front of it quickly and are made to pay heavy financial penalties if they want to escape going to court—and it works. Why are we different?
784 If people have to go to court, why do we need a six-month trial? A fraudster from Wall Street goes before a judge within a month of being arrested. His trial takes place after three months and usually lasts a month or two. Why are we different? Case management should be much tougher. There should be a front loading of costs in order to make the defendant realise, in many cases, the futility of defence. Why do we not have plea bargaining? If there has been a financial crime that is damaging to the community, such as a drug case involving huge amounts of money, the people involved should be able to plea bargain. If proceeds of crime are to be pursued, part of the results should go towards paying for the justice system.
I turn now to public interest law. The image of the wealthy lawyer is totally miscast when it is applied to small firms working in housing, benefits, mental health, asylum and immigration for little profit, but with great commitment to public good. Yes, there are rogues: today's Guardian told us that there are some in the asylum and immigration system. As the Legal Services Commission recognised, they are in a minority.
Nothing that we do should deter such lawyers who have the public interest in mind from continuing to practice. Nothing that we do should diminish the number of people who are prepared to do that sort of work in the future. If our system is worth anything, it will be judged by what we do for the least able people, who are the people that the public interest lawyers best serve.
Finally, I turn to civil legal aid. I find the tension in the fixed budget system whereby a criminal overload in terms of legal aid costs has to be met by civil legal aid reductions very worrying. Why do we not review civil legal costing again; for example, continue the legal aid fund, make a person who wins a case pay something back to the fund and consider paying a winning defendant's costs to introduce discipline? We should make it something other than yet another step towards the American contingency fee system, with all its dangers.
In conclusion, access to justice is important because it represents fidelity to the law, if it is present. Fidelity to the law produces respect for the law. There is no respect without access and reasonable cost with efficient systems and good quality service.
§ 5.13 p.m.
§ Lord Thomas of Gresford
My Lords, I underline the comments that have been made by my noble friends Lord Hooson and Lord Livsey of Talgarth in relation to the position of the magistrates' court in Llandrindod Wells. I fully support everything that the noble Lord, Lord Williams of Elvel, said on that topic.
I cannot resist using a familiar legal phrase or saying: "I once had a case". I recall at Llandrindod, with a great deal of affection, a case where I was acting for a farmer in a boundary dispute. On the morning of the hearing, his opponent—the neighbouring farmer—said that the boundary was delineated by a line of tree stumps. The court adjourned to inspect the tree stumps. My client said 785 that they were not there, but, sure enough, they were. He walked to one of them and said, "I am not having this", and he pulled it out of the ground. It really was a case of the evidence having been planted: every single one of those tree stumps was planted. But nevertheless I lost. I have never quite understood why that was the case.
Turning now to more serious matters, in 2001, the Lord Chancellor's department and the Law Centres Federation published a paper entitled, Legal and Advice Services: A Pathway out of Social Exclusion. It stated:Lack of access to reliable legal advice can be a contributing factor in creating and maintaining social exclusion. Poor access to advice has meant that many people have suffered because they have been unable to enforce their legal rights effectively, or have even been unaware of their rights and responsibilities".As noble Lords know, social exclusion is a term that is applied to people who suffer from a variety of linked problems, such as unemployment, lack of skills, bad housing, bad health and family breakdown. It frequently happens that such problems occur in clusters. One problem, such as bad housing, leads to bad health, and so forth. Ultimately, a combination of those problems can lead to crime and the very costly means of dealing with crime—imprisonment.
The Community Legal Service, which was a 1997 manifesto commitment by the Labour Party, was supposed to focus on the issues that affect the everyday lives of the "disadvantaged and socially excluded". The Community Legal Service was set up in April 2000 under the Access to Justice Act 1999 with the aim, as the Lord Chancellor recently said, of,improving … access to justice and promoting people's rights … through ensuring that legal advice is readily available for those that most need it".Of course, the Act also removed almost entirely standard personal injury work from legal aid funding. Its contracting system was designed to shift legal aid expenditure away from civil representation towards areas of social welfare law that are associated with the fight against social exclusion. In fact, in recent years, there have been reductions in the contracts let by the CLS in family welfare benefits, housing, debt, employment and consumer issues. The independent review of the CLS that reported in April 2004 said:As welfare benefits, debt and housing are numerically the most significant and are more closely associated with social exclusion, the overall picture does not support the view that contracting has refocused LSC funding by directing it towards social exclusion".So the policy of moving legal aid funding away from personal injury cases and court cases towards areas that involve social exclusion has failed. On the one hand, the aims of the Government are not being met. On the other hand, in the past year, funding for personal injury cases has disappeared and the number of contracts that are awarded regarding family, consumer, mental health and clinical negligence has been significantly reduced.
This highly critical report that was published last month was greeted by the Legal Services Commission with a press release on 29 April, which was headed, 786 "Community Legal Service in Good Health". That was directly contrary to that which the review had said. Clare Dodgson, chief executive of the LSC, said:The good health of the Community Legal Service is a result of us ensuring that we spend taxpayers' money only on quality solicitors' firms and advisers, and that legal aid meets the needs of communities throughout England and Wales".That was the blah that was put forward in answer to the critical review.
What did the review say? It found a lack of leadership and aims in the Community Legal Service. The partnerships that were set up under the scheme were regarded by a majority of the participants as less than effective in improving access to justice; that is, the local authorities, the not-for-profit organisations and so forth which played a part.
I shall quote again from the review:The Review established a lack of clarity about the intended outcomes of the CLSPs, as well as no consistently used method of measuring outcomes. Little evidence has emerged that the system of partnerships, as currently set up, can guarantee success in achieving the intended outcomes of the Community Legal Service. The unevenness in provision of advice and information services (both geographical and thematic)"—resulting in the deserts that we have heard about and the fact that not all areas of legal advice are covered—mitigates against partnerships being able to guarantee the provision of effective and appropriate high quality and timely information and help".That is from a review published last month.
The CLS appears to have spent its time and energy in organising. It has set up 208 community legal service partnerships and then looked around to find out what it could then do. It is doing very little. The recent response was disappointing. The crucial problem is of course funding. The review noted that:The CLS budget appears vulnerable to policy changes"—a point made by the noble Lord, Lord Brennan, a moment ago—particularly those made by other government departments, with the civil legal aid budget being eroded by the increasing demands of the criminal legal services agenda in particular".Lack of money means that practitioners naturally move away from unprofitable work. Legal aid work is no longer a viable career. Solicitors cannot afford to train people in work of this nature and, on present trends, the future of publicly funded legal services is bleak. Deserts are emerging in which people are unable to obtain the legal advice they require.
Providing public offices and employed solicitors in such work is no answer either. The capital costs of creating a nationalised service mean that that cannot be cost-effective, however much the Government may like to stand on the necks of solicitors all over the country. In fact, I would say that the Government are destroying access to justice. The network of high street solicitors has been able to serve the public in those very fields of social exclusion by setting off the unprofitable nature of their advice and representation services against their profitable private work.
787 I speak as a former solicitor. I recall taking a case concerning war pensions to the Divisional Court for nothing. I was instructed by my brother, also a solicitor and acting for nothing. I appeared in the court on my own with, on the other side, the noble and learned Lord, Lord Woolf. I am happy to say that he lost on that occasion. But as solicitors and counsel from the provinces we were prepared to do that because we had a public commitment to the matter.
What is the Lord Chancellor's answer to the criticisms made by the authors of the Independent Review of the Community Legal Service? Does he accept those criticisms and, if so, what is he going to do about them? The noble Lord, Lord Brennan, referred to high-cost criminal cases. I have such an interest in this matter that I do not think that I should address noble Lords on it at all. All I can say is that it is the most ridiculous, bureaucratic, time-wasting and inflexible way of monitoring what goes on in court. Case managers are appointed to every team. I was involved in a case recently where there were eight defendants with eight teams, every one of which had a case manager sitting somewhere in Red Lion Square. Before we could do anything, such as look at a piece of paper handed to us in court, we were supposed to ring up our case manager and ask, "Can I look at this plan which has just been handed to me?". That is the sort of bureaucratic rubbish that arises in the present system. I seriously hope that the Government will do something about it, and very quickly.
§ 5.24 p.m.
§ Lord Taverne
My Lords, the effects on justice for the citizen of the decline of the legal aid system were vividly described by my noble friend Lord Phillips, and I was much impressed by the speeches of the noble Lord, Lord Brennan, and my colleague and noble friend Lord Thomas of Gresford about the lack of imagination shown in the organisation trials. But I want to deal with a rather different point. As part of our concern that citizens have access to justice when they need it, we should be concerned about the way legal aid is spent. When money is wasted on legal aid, the amount available for deserving cases is reduced.
I want to draw attention to one particular case in which some £15 million was spent on legal aid that should never have been sanctioned. It happened before the passing of the Access to Justice Act 1999 but, as the Legal Services Commission has acknowledged, some salutary lessons should be drawn.
I refer to the action brought against some pharmaceutical companies in a claim that MMR was the cause of autism. The case has been very carefully documented in a book called MMR and Autism by Dr Michael Fitzpatrick, to be published on 29 June. I have been personally interested in the MMR dispute as part of a more general interest in the increasingly fashionable rejection of the evidence-based approach to scientific and medical issues.
Let me start with the background. For many years before the MMR vaccine became a matter of public controversy, there has been a campaign against 788 vaccination. Immunisation is one of the success stories of modern medicine, and it is a huge success story. It has virtually eradicated a large number of serious diseases such as whooping cough and measles.
Yet a group of people who believe in homeopathy and alternative medicine has long campaigned against vaccines, and has taken that campaign to the courts. These are people who distrust modern scientific medicine and seem to believe that we should go back to nature and pre-Enlightenment days, preferring remedies sanctioned by centuries of use, as if medical treatment is like some kind of antique furniture whose value increases with age.
A case claiming that the pertussis vaccine caused brain damage was considered by the High Court in 1988. The court found conclusively against the plaintiffs. However, the anti-vaccine campaign recently became a prominent public issue after Dr Wakefield's notorious paper was published in the Lancet in February 1998. It argued that some eight cases of autistic children that he had examined suggested a link between the MMR vaccine and autism.
That parents of autistic children should believe in such a link is completely understandable. If your child shows signs of autism after receiving the vaccine, it is natural that you should suspect there may be a link. When you find that other parents have had the same experience, your suspicions seem confirmed. But of course the coincidence of timing does not prove a link. Post hoc does not necessarily mean propter hoc. It so happens that the age at which the MMR vaccine is administered and the age at which the first signs of autism appear often coincides.
In fact, the case against a link between MMR and autism and, indeed, the evidence that MMR is safe has always been overwhelming. Epidemiology is not a science that the public or many journalists seem to understand, but studies of millions of children have shown that there is no higher incidence of autism among children who have received the vaccine than among those who have not. Scandinavian studies are particularly reliable because these countries have long-established immunisation programmes, relatively stable populations and high quality public health records.
Nor has any mechanism ever been discovered that could show how MMR might cause autism. The case made by Dr Wakefield has been totally discredited. Those who originally associated themselves with his article in the Lancet have all withdrawn. He himself has ceased to talk to the medical profession and now says that all he has ever learnt about autism came from talking to the parents of autistic children. He has retired to a research centre in Florida run by an evangelical Christian.
The case put forward by the lawyers to claim compensation against the manufacturers of the vaccines has also altered dramatically over time. In 1994, when they obtained legal aid, they argued on behalf of some 100 families that MMR causes a wide range of effects, including brain damage, epilepsy, arthritis and auto-immune diseases. Then they 789 modified the claim to one that it caused autism only, but warned that we were facing an epidemic of autism. Subsequently they argued that MMR has the effect of causing autism only in a very small number of especially vulnerable cases.
When Dr Wakefield's paper first appeared in the Lancet, the lawyers acting on behalf of the families raised the issue with the Committee on Safety of Medicines. This ruled that there was no evidence of a link. The MRC has twice considered the issue and come to the same conclusion. It is fair to say that there has never been any evidence of a link.
I return to the issue of legal aid. Despite the lack of any evidence in support of them, in 1994 the Legal Aid Board, as it then was, funded claims for compensation against the pharmaceutical companies. It was the first time that legal aid was granted for the specific purpose of financing scientific research to see if a case could be made—not because there was a prima facie case but to see if there might be.
As Dr Fitzpatrick has recorded, the so-called research was then left to a group of lawyers who had no relevant scientific competence. There was a 16-strong team. Only three had a scientific qualification, at the level of basic university science degrees. None had any experience of postgraduate study or research. This team, mainly then consisting of lawyers, was apparently to discover evidence in a deeply complex field of science, evidence that had eluded top specialists in the field. The team was going to disprove the findings of a large number of carefully conducted, international studies, in a variety of countries, covering millions of children, all of them showing no link between MMR and autism.
After 10 years and the expenditure of more than £15 million, not surprisingly, no evidence has emerged to provide a prima facie case. Earlier this year, the Legal Services Commission withdrew support and declared that the failure to find evidence meant that the case was very likely to fail. It also observed that aid should never have been granted, because the courts are not the place to prove new medical truths.
As a result of the MMR campaign, in which the lawyers, funded by legal aid, have played a prominent part, vaccination levels have dipped below the level which provides herd immunity and the lack of respect for scientific evidence by journalists may well cause a recurrence of a nasty disease that had been virtually eradicated. Pharmaceutical companies have been discouraged from developing vaccines, which may yet cause a serious public health problem. But that is not an issue for this debate.
I think that in these circumstances, it is right to describe the granting of legal aid and the waste of public money that resulted as a scandal. I believe that it was the second largest amount of legal aid ever spent on a single case, except for a previous class action about tranquilisers that also failed. From the start, it was a disgrace that legal aid was ever granted. The so-called research was, and was always likely to be, a farce. None of the families has benefited by one penny from the whole operation. The Legal Aid Fund has 790 been depleted and, indirectly, the access to justice for others, who might have benefited from the proper use of £15 million, has been prejudiced.
§ 5.33 p.m.
§ Lord Ackner
My Lords, on the fourth day of the debate on the Address on 2 December 2003, in cols. 217 to 219 of Hansard, I referred to the statement of Tony Blair just before becoming Prime Minister in 1997, when he said:Labour's goal of improving access to justice is an essential part of our commitment to social justice".—[Official Report, 2/12/03; col. 217.]I then identified four headings designed to show that that commitment had been seriously eroded. Those headings were asylum and immigration; crime; civil claims; and the rapidly diminishing facilities for advice—the advice deserts.
§ I do not for one moment expect your Lordships to have any recall of such an unstimulating event. But I shall not profit by repeating what I said in order to fill up time in this debate. Instead, I will concentrate upon the position of the Bar as it stands at the moment. Next to my wife, the Bar has always been my first love. The position which has now been reached, in which the Bar and the Government are at loggerheads, is terrible.
§ Before dealing with the Government's action following their publication entitled Delivering Value for Money in the Criminal Defence Service, I stress that the Bar has always considered that it is a referral service that must be judged by its competence and its ability to deliver. The Bar has long recognised the need to demonstrate that continuation of an independent specialist referral Bar is in the public interest and that the Government must achieve value for money in the purchasing of legal aid cases.
§ I shall list the actions which the Bar has taken with a view to trying to improve the present position. First, there is the pro bono work. A thousand members of the Bar contribute to schemes involving several thousand hours of unpaid work, for which the noble and learned Lord the Attorney-General, when elected Leader of the Bar, can properly take credit for much of the original initiative.
§ Secondly, there is the graduated fee system, successfully proposed and negotiated by the Bar with the Lord Chancellor's Department to standardise, as far as possible, fees in criminal work and, later, in the Family Division. The scheme came into force in 1995, on the clear understanding that the fees would thereafter rise with inflation. The Government have refused to implement this, with the result that the fees now paid are out of date by nearly 10 years.
§ Thirdly, the front-loading of the preparatory work necessary for effective plea and direction hearings is intended to ensure, well before trial, that those who are going to plead do plead, and that no further time is wasted on preparing for a fought case.
§ Fourthly, there is the consultation between the Bar and the judiciary to discover ways of speeding up trials. That is a recent event, and the consultation is still pending.791
§ Fifthly, corporate insurance to fund long fraud defences should be considered, with a view to relieving the Legal Aid Fund of those costs.
§ Sixthly, plea bargaining enables the defendant to appreciate—subject, of course, to the material remaining consistent with the committal papers—the nature of the punishment which he is likely to receive, depending upon whether he pleads or fights the prosecution. That is not designed for Chambers hearings, but for expression in open court.
§ Let us see how the Government have used their monopoly employer status to impose—for that is in reality the position—fees that no self-respecting, responsible profession could possibly accept and still remain the strong, independent and competent source of advice and representation that is essential in a democracy.
§ Under the very high cost cases scheme—the VHCCS—there are four distinct categories of cases. The first category is the very complex fraud case, such as the Blue Arrow or Maxwell case. The second category is the very long fraud case. Those two categories are exceptional and likely to occur only once or twice in a year, so I will concentrate on the third and fourth categories, which cover serious cases where sentences are likely to be life or very many years' imprisonment, or documents are likely to consist of many files.
§ To give your Lordships a flavour of the position in those cases, a problem arises with very serious non-fraud cases that fall within these categories. They may be complicated, multi-handed murders or multiple rape and sexual abuse cases, complex drug cases or other professional criminal activity. Such cases are grossly under-remunerated in comparison with fraud cases. The present qualifying criteria are irrational, vague, subjective and inappropriate. In addition, the rates of payment in categories three and four are so inadequate that the scheme should be simplified to categories one and two only, with an appropriate division of cases within these two bands.
§ I will give noble Lords a flavour of the rates. The rates imposed in the scheme represent cuts of more than 50 per cent in the fees previously determined by taxing masters as fair and reasonable. At the bottom end, a junior who may be defending in a murder case is eligible for payment of £50 an hour—which is £35 after standard expenses—and a net rate for court work as low as £15.50. In the highest possible category of case—such as the Blue Arrow fraud, of which there are likely to be only one or two a year, as I said—the leading QC is eligible to be paid a net hourly rate of £126 for preparation and £60 for advocacy. Those are less than half the rates previously paid and perhaps a quarter of the rates normally paid for private work at the Bar. By way of comparison, the current solicitor's work for advocacy in a magistrates' court under legal aid is £62.36 per hour.
§ Lord Evans of Temple Guiting
My Lords, may I remind the noble and learned Lord, Lord Ackner, that 792 he has already exceeded his 10 minutes? The House would be most grateful if he would bring his remarks to a conclusion.
§ Lord Ackner
Yes, my Lords, I certainly will. I am most grateful to the noble Lord for telling me off.
In relation to the position offered by the Government, it is not surprising that the cases are either not being dealt with because the contracts are not acceptable or dealt with pending reconsideration by the Government of whether fees should be charged at all. That is why I said that the position is quite lamentable. I close on that depressing note.
§ 5.45 p.m.
§ Lord Goodhart
My Lords, I no longer have a personal interest to declare as I have ceased to be in practice at the Bar. I am most grateful to my noble friend Lord Phillips of Sudbury for introducing this debate and I agree with everything that he said—a statement that I am not always able to make.
I agree with a great deal. I agree with the advocacy of the noble Lord, Lord Borrie, of small claims courts, ombudsmen and alternative dispute resolutions. I agree with the condemnation of the withdrawal of local justice from rural Wales spoken to eloquently by my noble friends Lord Hooson and Lord Livsey and by the noble Lord, Lord Williams of Elvel, all of them distinguished representatives of the Taffia. I agree with the remarks of the noble and learned Lord, Lord Donaldson of Lymington, that provision of justice is an essential public service. I agree with the suggestion of the noble Lord, Lord Brennan, in a particularly thoughtful and realistic speech, that there should be a legal cost impact assessment in new legislation and that there should be a British equivalent of the US Securities and Exchange Commission.
I agree with the criticism voiced by my noble friend Lord Thomas of Gresford about the Community Legal Service. I agree with my noble friend Lord Taverne that we must avoid the waste of money of funding expensive cases that have no evidence-based hope of success behind them. I agree with the praise of the noble and learned Lord, Lord Ackner, for the Bar's pro bono activities. However, I regret that we heard nothing from the Conservative Back Benches and I hope that that is not a sign of a lack of interest in a proper system of legal aid. For many people, access to justice requires legal aid—the provision of advice and representation by lawyers paid for by the state. Without legal aid, access to justice is denied. For that reason I wish to concentrate this afternoon on legal aid, especially on civil legal aid.
The Legal Aid and Advice Act 1949—the legal aid Act—was one of the great reforming statutes of the Attlee government. The 1949 Act gave access to justice, both civil and criminal, to many people who had not had it and eliminated archaic practices such as the dock brief. However, problems have arisen with legal aid over time. The main problem has been its escalating cost. I recognise that the problems require solutions that I do not like but which we may have to accept. We have to accept, as does the noble Lord, 793 Lord Brennan, that civil legal aid cannot be demand-led as it was until 1999. The Government are entitled to set financial limits on civil legal aid as they do with health and education.
Criminal legal aid is a different matter. A defendant faced with a serious penalty must be given legal aid if he or she cannot afford to pay for it. That is a requirement under Article 6 of the European Convention on Human Rights. Also, much as I dislike them, I fear that conditional fees are here to stay in certain kinds of action for damages. Conditional fees are settling down to some extent and it is encouraging that some of the notorious ambulance-chasing companies which sponsor them have gone out of business. The system needs reform, but I doubt if such practices can be eliminated.
Of course, the corollary of cash limiting is that legal aid cases must be prioritised. Priority must be given to cases that raise issues of general public importance or in which the absence of legal aid would cause real hardship to the applicant. I do not think that public money should be spent, as it used to be, on supporting an action about the ownership of a boundary hedge, for example, however likely that action is to succeed. Where we really need legal aid is to prevent someone losing their livelihood or their home; or being denied compensation for a loss that has already occurred; or being forced to live in a building whose condition is a risk to health; or being forced into bankruptcy by a loan shark.
The Access to Justice Act 1999 contained a serious flaw, as we pointed out at the time. That flaw is the fact that both criminal and civil legal aid are paid for out of the same pot. As the figures for uncapped criminal legal aid increase, as they have done year by year, that reduces the amount available for civil legal aid. The consequences of the reduction in real terms in civil legal aid have been made clear in evidence given to the Select Committee on Constitutional Affairs in the other place in connection with its forthcoming report on legal aid. That evidence has come from, among others, the Law Society, the Law Centres Federation, the Legal Action Group, the Legal Aid Practitioners Group, the citizens advice bureaux and others. They all speak to the same effect.
The evidence says, first, that the Government continue to impose grossly inadequate financial eligibility limits. Millions of people are ineligible for legal aid and millions more are eligible but must pay a contribution. Only those with incomes at or below the income support level qualify for legal aid without a contribution; others must pay a third of their income above the income support level. The figures from the report show that the need to make contributions is a serious deterrent to applicants.
Secondly, it is quite plain that advice deserts are developing. The Law Society's evidence is that there are no legal aid solicitors providing help with welfare and benefits law in Sheffield, Calderdale or Rotherham and only one in Leeds. There are no legal aid housing solicitors in the county of Kent. Citizens advice bureaux have reported that 68 per cent of the bureaux have 794 difficulties in finding a legal aid solicitor for immigration issues; 58 per cent for family cases; and 60 per cent with housing.
Thirdly, the number of solicitors with controlled work contracts has fallen by 17 per cent since January 2000. Fourthly, the number of cases that solicitors can take is falling; new case starts fell by 10 per cent in the first eight months of 2003–04, against the previous year. Over the past 10 years, while the number of practising solicitors has increased by 50 per cent, the number of firms doing legal aid work has decreased from 11,000 to 4,361.
As has been pointed out, there is a problem with lawyers who are no longer prepared to act in legal aid cases. Legal aid lawyers are walking out on legal aid and switching to work for unaided clients. Many of them chose to work in legal aid for preference, but if the gap between them and their colleagues in private practice is too wide they will leave, for the sake of their families if nothing else.
I believe that we are facing a crisis in the legal aid system. What are the solutions? The first and most obvious one is to ring-fence civil legal aid. Civil and criminal legal aid serve entirely different purposes and there is no reason why, as a result of an increase in crime, people should lose their rights to legal aid for family cases, housing cases or benefit cases. The increase in criminal legal aid should be paid for out of government contingency funds.
Secondly, the Government must be prepared to put more money into legal aid. They may say that that money is needed for schools and hospitals, but a family living in a house which the landlord refuses to repair; a wife bringing up children in poverty because her husband or ex-husband refuses to meet his obligations to them; and an employee sacked from a job on grounds of race discrimination—all those people need legal help alongside a health service and education for their children.
We are seeing the gradual collapse of a legal aid system of which this country could once be proud. We can be proud of it no longer.
§ 5.54 p.m.
§ Lord Kingsland
My Lords, I agree with everything that every one of your Lordships has said so far in this debate. Indeed, I am sure that I would have agreed with what the noble and learned Lord, Lord Ackner, would have said if he had had further time to say it.
The seeds of the difficulties that we face in this matter were mainly sown by the Access to Justice Act 1999. Among its manifold defects, the one that is most relevant to today's debate is the combined effect of capping the total legal aid budget together with the amalgamation of its criminal and civil components. That point was, indeed, eloquently made by the noble Lord, Lord Goodhart. The criminal fund is demand-led and the demand is rapidly growing, so the civil fund is being squeezed, with the consequence that the poor and socially deprived desperately needing help in areas such as housing and welfare are unable to get the legal support that they deserve. In 2002–03, for example, the criminal legal aid overspend was in the order of 795 £270 million. The central change required, therefore, is for the Government to take immediate steps to ring-fence civil legal aid, as the noble Lord, Lord Goodhart, said.
The present situation simply cannot conform with the obligations imposed on the Government by the Human Rights Act—which were obligations that they decided to impose on themselves when they introduced the human rights legislation in 1997 in your Lordships' House. It cannot be right that the Government can be meeting those obligations if the scale of the civil aid budget depends on the scale of the criminal aid budget.
It is not a testing intellectual challenge to reach that conclusion. If the criminal aid budget, instead of increasing by £270,000 in 2002–03 had increased by £1 billion, where would the civil aid budget have been? That does not add up, either politically or constitutionally. The Government must move in this area immediately if they are to meet their own obligations under the legislation that they themselves enacted.
§ Lord Williams of Elvel
My Lords, is the noble Lord, Lord Kingsland, expounding Conservative Party policy on this matter?
§ Lord Kingsland
My Lords, I am expounding the obligations that any government, whether a Conservative one or the present Government, would have to meet under the Human Rights Act.
As the noble Lord, Lord Thomas of Gresford, said in his splendid contribution to the debate, the recent report—the independent inquiry—commissioned by the Government themselves and published in April, is a very telling condemnation of the existing situation. The report makes it clear that the CLS is failing to meet its aims. For example, it found that,little evidence has emerged that the system of partnerships, as currently set up, can guarantee success in achieving the intended outcomes of the CLS".It found that over half the advisers working in the CLS responding to a questionnaire,did not believe their CLSP had been effective in improving access to justice for the public".It found that there was a "near unanimous view" that serious gaps in provision exist across the country, and that there is currently a,lack of overall accountability for the CLS",and no clear dedicated leader driving change within the CLS, meaning that the,
agenda for the CLS is not sufficiently clear".That system is a system that the Government willed on us by the Access to Justice Act 1999. What are the Government going to do about the report? It clearly demonstrates that the system over the past four years has lamentably failed in an area that is absolutely central to individual rights. The noble Lord, Lord Goodhart, has also cited evidence from the National Association of Citizens Advice Bureaux that corroborates the conclusions of this report.
796 The wider issue of access to justice in relation to magistrates' courts has been raised by a number of speakers in your Lordships' House this afternoon. It is a fact that, since 1997, 96 magistrates' courthouses have closed in England and Wales while only 14 have opened. Many of these closures have been in remote rural areas. As a party, we have repeatedly expressed concern at the distances that defendants, witnesses and victims must now travel to attend court. The noble Lord, Lord Phillips, has also spoken out about the threat to local justice from such closures. They undermine community life and prevent magistrates responding to local concerns in a way that helps to give a real sense of justice.
The Government continue to assert that decisions concerning the number, location and future of magistrates' courts are for each magistrates' court committee to determine in consultation with its local paying authority. Those committees are not, as I understand it, statutorily required to inform the noble and learned Lord the Lord Chancellor of proposed courthouse closures and these closures are not subject to any appeal system.
The Government continue to insist that the number and distribution of magistrates' courts is nothing to do with them. That is plainly hypocritical. The noble and learned Lord the Lord Chancellor and, indeed, the noble and learned Lord the previous Lord Chancellor have said on many occasions that local justice, locally delivered is central to the Government's philosophy.
How can that principle possibly conform with their attitude to magistrates' court closures, especially when the Home Office has been insisting for many years now that the human rights convention requires substantial new expenditure in courthouses in order to protect the human rights of the defendant? If these expenditure requirements, causing many closures, are to be insisted upon by the Government, then surely the Government should be assisting the magistrates' courts to meet those obligations. It cannot be right that expenditure should be met from local sources.
To conclude with two general thoughts, I was struck by the speech of the noble and learned Lord, Lord Donaldson of Lymington, about the need to look at the question of the provision of legal services in the context of the provision of public services generally, suggesting that the Government ask themselves to what extent the provision of justice is similar to the provision of health services or education and to what extent it is distinct and to draw appropriate conclusions from that.
I was also struck by some of the thoughts of the noble Lord, Lord Brennan, about where we ought to go next. In civil legal aid matters, advisers have to grapple with legislation of increasing complexity. In the area of environmental law, the best way to tackle pollution is to create technologies that do not generate it in the first place. Equally, the best way to reduce the expenses of civil legal aid in areas such as housing and welfare law is to produce simpler legislation. Perhaps the costs of the complexity of future legislation in these areas should be borne by the departments that generate it.
§ 6.4 p.m.
§ The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Lord Filkin)
My Lords, I am genuinely glad that we have had the opportunity of this debate because this is a central issue of public policy and politics. I am also glad that, in opening the debate, the noble Lord, Lord Phillips, signalled that the issue is wider than legal aid, although legal aid is obviously a significant part of the debate.
In my 20 minutes, I shall seek to answer a number of points raised and, at the same time, to share with the House the current thinking in government on these issues. There will be further opportunities to see that thinking later in the year when we publish our strategy for the next five years but it is so relevant to this debate that I would not be doing the House justice if I did not give at least a taste of some of those issues. If I do that, I shall not be able to answer every single point that has been raised. Even if I spent my 20 minutes solely on that, I would not be able to do so. I make a commitment that I shall either write individual letters or a more comprehensive response to Members. I think that if I at least try to set out the broader picture of the Government's perspective on measures that inhibit access to justice I am helping the House more than if I am simply in responsive mode.
The central aim of the new department is to focus on what the public experience as problems and on how to change the systems and services to meet those problems better. Therefore, taking that approach to the problems that inhibit access to justice, I will set out four initial points and will then sketch out some of our thinking on the direction of travel, not solutions, for trying to make improvements. The first point is that the number of justiciable problems in society is extremely large. The evidence from Hazel Genn's work, the work of the Legal Services Research Centre and our own research this year demonstrates that at least 50 per cent of the public experience significant justiciable problems over a three-year period. In other words, we are talking about very large numbers of problems that are not trivial and that affect the public to which, in theory, a legal system might be able to find some solution.
From that research, we also know what the public say about the ways in which the state and society currently offer solutions to those problems. They believe that they take a long time to resolve and they are right. They are unclear about where to go for advice, apart from the CAB and solicitors. They know that the CAB is very busy and that one cannot get in and their perception is that solicitors are at times expensive. Justiciable events are seen by consumers as being difficult to resolve and the experience of those who try to resolve them is seen as being harder than they had expected. The public feel that the legal system is expensive, complex, slow and stressful.
I now turn to the criminal system, which we have not talked about much this evening. Maybe some noble Lords thought that it was outwith the terms of reference of this debate. I do not think that it is. In terms of access to justice in the criminal area system, 798 I shall articulate three issues that are of public policy concern. The first is the issue of attrition, the ratio between the number of offences committed and the number of convictions. Put coarsely, the public's perception of this is that the criminals get away with it.
The second issue, which is perhaps more neglected, is that the system focuses, almost inevitably, on major criminal issues and the evidence is that they are not always the issues of most concern at community or local level. The criminality that matters most to people at local level is a range of miserable, low-level crime or anti-social behaviour that erodes the quality of life in the community.
The third issue about the criminal justice system and whether it is seen by the public as delivering the results and justice that they hope for is that, as a result of historical evolution, the system clearly focuses on the offence and on coming to a fair decision about whether that offence was committed. The focus is on the offence, not the offender, and the extent to which it is possible to prevent re-offending is only an ancillary focus. As far as many members of the public are concerned, certainly as far as many of the crimes they have touched on, reducing re-offending is probably the issue that matters most to them. Those are some of the challenges and problems that the criminal justice system faces in terms of giving the public access to a justice system that does what they want.
I suggest that the third issue that is potentially an impediment to improving access to justice is the historical and rather simple equation, made by all of us, of the courts with the justice system. That is not to say that the courts are not an absolutely fundamental foundation of our society, the rule of law and of the quality of this country. We rightly hold them in very high respect. But a focus which sees the courts as the central or preponderant model, particularly in an adversarial role, has certain consequences. That is not universal, but they have the characteristics of being high skill, high cost and slow.
Part of that historical tradition has been that we have not been particularly energetic as a society. The Government take more than their fair share of blame in that respect for developing alternative resolution models which are fit enough for purpose although not perfect.
Another part of the problem in terms of access to justice is entrenched thinking. There is a good argument that more money would make life better and that is self-evidently true. But the argument that we would simply resolve the problems by throwing more money at them does not stack up if one gives it much thought. Put at its crudest, if one thought about a totally free service to citizens, which allowed them to take justiciable action on any of the problems, one can imagine the consequences in the scale of growth of demand on legal services and the legal system.
Simply thinking that by throwing money at the problem we will solve it will not do. That is not say that there is not a proper political debate to be heard about whether the right level of money is being used.
799 I shall set out relatively quickly a limited number of areas where we believe we have to apply more intellectual effort and government muscle. First, there is the ghastly phrase, the concept of proportionate dispute resolution. Looking at the problems in society we need to be much more creative in identifying mechanisms to resolve those problems which are proportionate to the problems and the cost. We have an agenda of about four or five issues. I agree with the noble Lord, Lord Kingsland, that if the legal system is clearer and more simple, in theory, and if one is an optimist, it is more conceivable that the public can see what is the message of the law and therefore give clearer guidance about what to do. That must be an object of policy even if we are pretty poor at fulfilling it.
Linked to that there is clearly a thrust towards early resolution. The more that one can resolve justiciable problems earlier, clearly in principle it is better and it is certainly lower cost.
There has to be more action to improve the understanding of rights and responsibilities by the public. Matched with that is helping them to decide how to deal with problems themselves. If one considers how many of us do resolve justiciable problems, it is not often by going to court or employing a lawyer. We develop a range of skills and techniques to try to make the person with whom we are aggrieved negotiate and come to an agreement which is acceptable. Many people do not have those skills and therefore we have to think of that as well as an object of public policy if we are to make much impact on the very large number of justiciable problems which the state can never expect to solve simply by the formal court process or the legal aid subsidy process.
Lastly, it is quite clear that we have to promote a range of tailored and innovative alternative mechanisms for resolving disputes. If there was more time I would share some of the thinking on the family, which is one of my areas of focus. There is massive potential there, but we have only just started on that. The present Lord Chief Justice set us that agenda in 1996. We have a lot further to go on that.
The second area is the issue of better education, information and advice. It is directly relevant to the issue of trying to make it more possible for more people to find solutions themselves to their justiciable problems rather than believing that we can provide a lawyer for everyone to resolve every problem. Therefore, the Government have to develop a cross-governmental strategy on advice and information in these areas. It does not exist at present and it is a challenge to government to see how they address the matter.
At a smaller level, as the noble Lord, Lord Phillips of Sudbury, signalled, there is a role for telephone advice. The noble Lord's views appeared to be more half-empty than half-full on that. If we look at that in terms of public policy and how NHS Direct has shifted our perception as to how one can give information and advice on a subject as sensitive as health and what a success that has been, that raises a serious question as to how we go further on telephone information and 800 advice for the public and how they can better resolve problems. A national telephone advice service on debt and welfare benefits will be announced in July.
As regards the agenda of issues which the Government have to consider, there is the matter of better court resolution processes. Clearly, in some areas such as money claims on line, we see through using electronic processes at relative low cost the ability to resolve and give judgment on a very high number of money claims in relatively simple terms. As regards tribunal reform, we are looking not simply at how we give people a day at a tribunal, but how we turn that into a process where we try to promote pre-tribunal resolution to problems rather than having a hearing, if that can be done while meeting the tests of justice.
We obviously have to increase the efficiency and effectiveness of the system, as the noble Lord, Lord Brennan, said, and also as regards case management initiatives. He also said that we should look elsewhere and use that as a challenge to us as to whether the situation should be as it is at present. He instanced the example of fraud. International comparisons are useful to us because they do not have to be exactly as it is here.
Those are some of the elements of what we shall be doing in terms of bringing fresh thinking over a five to 10-year period rather than an instant fix. I turn to the extremely painful and sensitive subject of court closures in mid-Wales about which the noble Lords, Lord Hooson, Lord Williams of Elvel, Lord Livsey of Talgarth and Lord Phillips, and others spoke The painful truth is that the decisions to close court houses are made by local magistrates' courts committees in consultation with the paying authority. If the decision is appealed against by the paying authority to the Lord Chancellor, he has a locus on it and can do something about it. But if not, he has no statutory role or power of intervention. It was not prayed against by the funding authority and therefore there is no locus by the Lord Chancellor.
We could spend a considerable amount of time on this issue. Perhaps I may write in detail to all noble Lords who spoke on the matter. I believe that is the fairest way to do justice to their queries.
§ Lord Livsey of Talgarth
My Lords, I have one point for the Minister to consider. The issue to which he has just referred has been complicated by the private finance initiative, which is a totally different issue. It impeded the ability of the local council to appeal.
§ Lord Filkin
My Lords, I shall take that issue away. I will look at it as part of the response which the department gives.
I turn very briefly to the issue I raised as to the misfit, as regards public concern, between the criminal issues which matter most to them and the focus of attention of the criminal justice system itself. These are very early days, but we are looking at establishing a community justice centre in Liverpool, building on thinking by the Lord Chief Justice and others. It is to try to see if there 801 are different ways of handling quality of life, low level offending, anti-social behaviour, property damage, harassment, prostitution, vandalism, fly-tipping, graffiti and nuisance drunkenness. One may ask what that has to do with this debate, but we have to find some ways of getting better purchase on these issues because they do not find much space in the current criminal justice system and yet they are matters on which the public judge as to whether we have effective access to justice in our society in a large measure.
I turn to the issue of who we subsidise and legal aid. Since 1996–97, expenditure on legal aid in cash terms has risen by 30 per cent. We make European comparisons with what we spend in Britain on civil matters. I am using that aspect because it is hard to make a fair comparison with criminal matters for obvious reasons. The average spend per capita on civil legal aid in England and Wales is more than £10. The next highest average spend in a non-UK country is Denmark at £4. The average spend per case on civil legal aid is more than £3,000 in the UK. The next highest average spend in a non-UK country is Denmark at £2,000. We are spending more on civil legal aid in this country than any other European country. That does not mean that we are necessarily spending enough, as has been well argued, but it certainly gives pause for thought whether we have reached perfection in the way in which we apply limited resources to the resolution of civil problems in our society.
The noble Lord, Lord Brennan, in an impressive speech was clear that there are certain realities of life. I also commend the noble Lord, Lord Goodhart, on making that point. He did not always enjoy those realities but he did not fudge them. Essentially, the noble Lord, Lord Goodhart, said that the provision that we are discussing cannot be demand led, that government are entitled to set limits for obvious reasons of public policy, and that budgetary limits are a reality of life.
It has been argued that if civil was ring-fenced, we would have a different debate. However, we would still have the same debate as we face; namely, how do we get best value for the public within a limited constraint of resource, which will always be conditioned by political choice, and can obviously go up or down? It is in that context that a number of reviews which we have commissioned are relevant to this issue. The most important one is the fundamental legal aid review that has been commissioned and is looking root and branch at the questions—as it should—of who we subsidise, for what actions and for what processes, because each of those three have an effect on the eventual cost. From what I have said previously, I obviously see the issue of the processes as germane to the question of who we subsidise and for what actions, because if you can get more economical processes for the same level of money you can subsidise more cases coming into the system. That—
§ Lord Phillips of Sudbury
My Lords, I am most grateful to the Minister for giving way. Am I right in thinking that the fundamental review, which I think has been ordered by the Department for Constitutional Affairs, is an internal review and will not, therefore, have external input at its crucial stages?
§ Lord Filkin
My Lords, the noble Lord is correct. It is an internal review which I believe is being carried out in conjunction with other parts of government. However, at this stage it is a pure piece of policy work by government. I expect that we shall publish it when it is completed; perhaps we shall publish it when it is completed—either way, a debate will need to be held on its conclusions.
In the time available to me I shall not do justice to the many detailed and important questions that were asked about legal aid. The noble Lord, Lord Phillips, referred to the Matrix review. We are certainly considering how the recommendations should be taken forward. As regards demoralised legal aid lawyers, we have had a very good response to recent contracts, both civil and criminal. We have had a positive response from firms. We have not been hit by a massive aggregate supply problem. Clearly, there are some geographical issues that need to be addressed, but there is no difficulty as regards people coming forward at the rates that are being offered.
I agree with the noble Lord, Lord Phillips, that we want to consume the minimum amount of expenditure on bureaucracy consistent with meeting public policy tests of value for money and protection against misuse or abuse. Clearly, that has to be an objective.
As regards the quality of legal aid suppliers, the specialist level of quality mark addresses quality through requirements to have qualified supervisors, effective supervision and an effective management system. It is much more of a quality control system than it ever was in the past—for example, five or 10 years ago. However, that does not mean that it is perfect.
As regards advice deserts, if the model is that one has to have a solicitor and an office in every town, I think that there will be areas with no provision. However, if the test is whether the citizen is able to get effective access to the advice that he or she needs, there are alternative ways of addressing that.
I shall not talk in detail about very high cost criminal cases. I shall not even rise to the bait that was raised by the noble Lord, Lord Thomas of Gresford. Clearly, there is a need to look at the underlying drivers of cost in very high cost criminal cases for reasons that were touched on in the debate. However, those negotiations are actively with the Bar at present.
The noble Lord, Lord Brennan, referred to the impact assessment of legal costs on new legislation. There is a principle in government that whichever government department initiates a policy that bears costs on other departments, there is an expectation that the originating department has to pay for the cost consequences. That was not always the case. I do not claim that the position is perfect now but it is obviously 803 fundamental for a downstream department such as the DCA; otherwise, one just picks up the consequences and burdens of everyone else's costs, and that is disastrous.
The noble Lord, Lord Goodhart, mentioned the simplification of conditional fee agreements. I agree with him that further simplification would provide a better deal for the customer, the solicitor and for the defendant. We published an initial consultation paper last summer and have been working with stakeholders on the details of that.
The noble Lord, Lord Taverne, gave a powerful and reasonably historical description of a legal aid scandal. I think that he used the word "scandal". Following the passage of the Access to Justice Act 1999, we have strengthened the processes by which cases are scrutinised. I very much hope that such a case could not happen again. However, it would be foolish of me to be totally optimistic about that.
I apologise as I am failing what the Whip will tell me is the Lord Ackner test. Therefore, I should come to a conclusion. I regret that I have not been able to give more detailed answers. I shall seek to do that either individually or through a more collective response. I welcome the debate. It has been an important issue on which to engage the House. We must return to it on future occasions.
§ 6.26 p.m.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the Minister for summing up. It was the more commendable as he was the only non-lawyer contributor to this debate apart from—I hasten to add—the noble Lord, Lord Williams of Elvel, and my noble friend—I did not say my noble and learned friend but was tempted to—from Powys.
It is also encouraging that the Minister was open-minded in a number of the responses that he gave to points raised in the debate. He talked of cross-party involvement and coming back to this issue. I have the sense—as I am sure many noble Lords do—that this has been a debate in the nature of a taster, so wide and important have been the issues that were discussed.
The Minister will not be surprised to hear me say that of the issues that I dealt with in opening the debate, which were taken up by many noble Lords, there has not been any satisfactory response on the split between criminal and civil legal aid—the ring-fencing issue. The issue of legal aid remuneration as regards solicitors has not been touched on at all and yet that is at the root of the decline in the system. I urge the Minister to read what has been said in this debate about that and the evidence because decline in the system there certainly is. If the Minister thinks that the Law Society is just making up the idea that there is severe demoralisation within the legal aid fraternity, or that the Legal Aid Practitioners Group is not of the same mind, I hope that he will think again.
There are many other matters that it is not appropriate to raise at this juncture except to thank most sincerely all those who have taken part in this debate. Legal aid has often been called the Cinderella service. I am most grateful to all noble Lords who have spoken about it 804 today with, if I may say so, a degree of commitment that bodes well for our future deliberations on improvements to the system. My Lords, I beg leave to withdraw the Motion for Papers.
§ Motion for Papers, by leave, withdrawn.