Standing Committee E
Thursday 29 April 1999 (Afternoon)
[Mr. Bill O'Brien in the Chair]
Clause 3
Power to replace Commission with two bodies
Amendment proposed [this day]: No. 58, in page 3, line 3, at end insert--
"(3A) Prior to the establishment of the community legal service and the criminal defence service the Lord Chancellor will lay before both Houses of Parliament for their approval by the affirmative resolution procedure a statement setting out the budget which the commission may deploy for each service which details what sums may be spent on legal services, administration costs and staff.
(3B) The budgets for the Community Legal Service and the Criminal Defence Service shall be assessed and accounted for separately.
(3C) Any order under this section shall be laid before both Houses of Parliament for their approval by the Affirmative Resolution Procedure".
--[Mr. Grieve.]
4.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are taking the following amendments: No. 62, in clause 6, page 4, line 39, leave out "determines" and insert--
"has determined in the statement referred to in section 3 (3A) above".
No. 66, in clause 6, page 4, line 44, at end insert--
"( ) In determining the amount appropriate for the funding of services as part of the Community Legal Service, the Lord Chancellor shall not take into account the level of expenditure expected for the Criminal Defence Service.".
Mr. John Burnett (Torridge and West Devon): May I welcome you, Mr. O'Brien, to the Chair of the Committee--although you were welcomed in absentia by the Minister, the hon. and learned Member for Harborough (Mr. Garnier) and by I at our first sitting.
I was caught a little short just before lunch--that would be the kindest way of putting it--and helped by a number of Committee members. The aim of amendment No. 65--we are not debating it now, but it is germane to the amendments presently before the Committee--was to require the Government to establish separate funds for the Community Legal Service and the Criminal Defence Service in place of the existing discretionary provision. In other words, it would make clear the amounts that the Government expect to be spent each year on each service and thus to enable Parliament and the public to gauge the extent to which any increase in expenditure on the Criminal Defence Service would adversely affect or impact upon the funds available to the Community Legal Service.
I apologise if amendment No. 65 on its own falls short of that aim. However, amendments Nos. 58 and 62 tabled by the hon. and learned Member for Harborough and his hon. Friends, and amendment No. 66, which is in my name and that of my hon. Friend the Member for Montgomeryshire (Mr. ípik) will effectively achieve separate funding for the Community Legal Service and the Criminal Defence Service.
As I said earlier, the Lord Chancellor made it clear in Committee in another place that the funds available for civil cases will be what is left after the prior claims of criminal cases have been met. He went on to suggest that he would have to look at the whole of his departmental budget to see whether there were sufficient funds to cover any overspend. He would then have to consider seeking additional funds from the Treasury.
This morning, I quoted what the Lord Chancellor said in the other place on 21 January. He was specific. I shall read that statement again. He said:
"I must repeat a simple truth that no noble Lord would or could gainsay in our discussions; namely, that what is available for civil legal aid is what is left over from the budget after the prior claims of criminal legal aid have been met."
--[Official Report, House of Lords, 21 January 1999; Vol. 596 c. 738.]
The Lord Chancellor has no option but to exempt criminal cases from cash limiting because the Government are rightly obliged to comply with the European convention on human rights.
The amendments would ensure that expenditure on the Community Legal Service is determined on its own merits and in the context of public expenditure generally, rather than being at the fag end, having what is left over from the Criminal Defence Service. Amendment No. 66 would restrict the Lord Chancellor, not allowing him to take into account the level of expenditure expected for the Criminal Defence Service when determining the appropriate funding for the Community Legal Service. It would make transparent the funds available for each of the two services and require them to be run and funded separately from the outset.
We have referred frequently to the White Paper, entitled "Modernising Justice". At paragraph 6.10, the Government say:
"there may be advantages in the longer term in establishing two completely separate and clearly-focused bodies to administer the two schemes."
I suspect that it is a matter of timing rather than principle. The Minister may suggest that ring fencing only certain items of Government expenditure is not appropriate. However, it would be a rare example of Government accounting if an overspend on a discretionary budget were funded out of a non-discretionary cut budget.
The Lord Chancellor may not relish having to explain an overspend to the Treasury, but that must be more appropriate than reducing the funds available to the Community Legal Service. In fact, most of the funds in a financial year will have been committed by one of the contracts; the likely consequence of an overspend on criminal legal aid one year would thus be that the funds for the Community Legal Service in the following year were reduced. The Lord Chancellor's indication that he would not bear down on the cost of criminal cases, particularly high-cost cases, may not be sufficient to protect the Community Legal Service.
I hope that this group of amendments will be accepted by the Government. They will ensure transparency by making the budgets of each service separate and distinct.
Mr. Edward Garnier (Harborough): I join with my temporary colleague, the hon. member for Torridge and West Devon (Mr. Burnett), in welcoming you to the Committee Mr. O'Brien. It may not have escaped your attention, that the hon. Member for Southampton, Test (Dr. Whitehead) has asked if he can become the Committee's little joker. He has had the chance, as have other Committee members, to read the Law Society's briefing on this group of amendments. My only regret is that, although he was mimicking the hon. Member for Torridge and West Devon in refering to it, he demeaned himself and those whom he sought to criticise.
The Minister of State, Lord Chancellor's Department (Mr. Geoffrey Hoon): I think that I am right in saying that it is not wholly in order and not good practice for hon. Members to read out briefs that are supplied to them. If my hon. Friend the Member for Southampton, Test drew that to the attention of the Committee in a subtle manner, it was to the benefit of all members of the Committee.
Mr. Garnier: The Minister's definition of subtlety escapes me. I am deeply concerned that a Government Back Bencher should allow himself to be led into that sort of error. I know that the Government are committed to getting their legislation through.
Mr. Andrew Dismore (Hendon): Will the hon. and learned Gentleman give way?
Mr. Garnier: No. I am making a point; I shall return to the hon. Gentleman in a moment.
As my hon. Friend the Member for Solihull (Mr. Taylor) said this morning, if the level of debate is to be reduced to personal abuse and other childish behaviour, it is as well that the public should realise how seriously Government Back Benchers take the Bill. Does the hon. Member for Hendon (Mr. Dismore) want to say something about QCs?
Mr. Dismore: It is not about QCs; we may return to that subject later. Was not the hon. Gentleman's last comment the pot calling the kettle black? Throughout most of his interventions in Tuesday's debate, the hon. and learned Gentleman was making personal comments about Labour Members. If he does not wish it to happen to him, he should respect Government Back Benchers.
The Chairman: Order. We should return to the business before the Committee.
Mr. Garnier: I shall make one or two brief remarks in support of amendments Nos. 58 and 62, drawing the attention of the Committee--especially of Labour Back Benchers who may want to respond--to why the clause causes problems.
Interested groups--not only lawyers but consumer groups--have expressed some long-term anxieties about how the funding arrangements for the Community Legal Service and the Criminal Defence Service, as set out in clause 3 and later clauses, are being elided. As my hon. Friend the Member for Beaconsfield (Mr. Grieve) pointed out at the beginning of the debate, amendment No. 58 would transparently separate the funding of the two organisations.
I shall not repeat what has been said, but it has been said on several occasions that the Lord Chancellor's words uttered on 21 January in the other place have led to huge dismay. Many people have been reported as believing that the Government have misled them in their intentions in respect of the funding of those organisations. Not only the Law Society, about which Labour Members are so anxious, but the Legal Action Group has claimed that the Bill implies that criminal and civil legal aid funds will be separated. However, that implication was confounded by the Lord Chancellor's words on 21 January, and nothing that has been said since has done anything to repair the sense of anxiety that those perfectly well intentioned groups feel.
The policy director of the Legal Action Group, Vicki Chapman, said:
"People have been under a false impression. Criminal aid will be demand-led, and the thought that it could eat into the civil budget is of grave concern."
The Law Society's head of legal aid policy, Karen Mckay, has commented that
"The worry is that civil legal aid will become the poor relation."
She is reported to have said that
"civil legal aid will become dependent on factors such as the prosecution policy and policing methods, or on whether more people are going through the criminal courts."
Her view, which Conservative Members and the hon. Member for Torridge and West Devon would support, is that it is "wholly unreasonable" and "unprecedented" that a demand-led budget should impact on a cash-limited budget.
I understand that the Lord Chancellor's Department says that there is a limited budget for legal aid overall, as we all know. The "inescapable demands" of criminal legal aid will have to be catered for, as will "essential areas of expenditure" such as domestic violence, with what is left being spent on other items.
We need to know at the beginning of each financial year how much will be left. At the moment, we are left to guess. I defy any sensible and reasonable reader of clause 3 and the other clauses that deal with funding to divine how much money will be available for the Community Legal Service. We do not even know how much the Criminal Defence Service will spend in any given year, because the Government have so far failed to publish any estimates, even in draft form, of how much they are likely to have to spend on those two services. That creates a lacuna that needs to be filled.
We all know that criminal legal aid will take a huge chunk of the legal aid budget, and that the Government say that they will introduce
"all sorts of measures which are designed to ensure that the money available goes as far as it can".
Those are warm words, but such intentions expressed by the Minister or his spokesman do not provide us with the detail. Indeed, the clause illustrates one of the dangers of the fact that the Bill constitutes simply a series of enabling clauses.
The Government have been shy in presenting the detail of spending and of the funding available. When the Government respond to the amendment, I trust that they will give not only lawyers--this is not merely a lawyer's bleat--but the public, who want to know how their taxes will be spent on state-assisted legal services, some detail, or at least some signposts to the detail.
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