Standing Committee E
Tuesday 4 May 1999
(Morning)
[Mrs. Gwyneth Dunwoody in the Chair]
Clause 6
Funding of services
10.30 am
Mr. Dominic Grieve (Beaconsfield): I beg to move amendment No. 40 in page 4, line 40, leave out `appropriate' and insert `necessary'.
The Chairman: With this it will be convenient to take amendment No. 41, in page 4, line 43, leave out
`and may impose conditions on the payment of the sums'.
Mr. Grieve: I welcome you to the Chair, Mrs. Dunwoody. It has been suggested that the Committee is proceeding in a rather purgatorial fashion.
The Chairman: I am now about to do the unforgivable and interrupt the hon. Gentleman. I should have announced that there is a mistake in today's amendment paper. This is a ploy to ruin your speech, Mr. Grieve. On page 421 of the amendment paper, amendment No. 57 should have been placed before amendment No. 128. I shall call them in that order, which is how they are set out on the selection list.
Mr. Grieve: I am happy to say that your announcement does not trouble me too much, Mrs. Dunwoody, given that my hon. and learned friend the Member for Harborough (Mr. Garnier) will be dealing with those amendments to clause 7, leaving me to focus my mind on clause 6. Our proceedings arc proving to be enlightening and the spirit of our debates has been pleasant.
Mr. Edward Garnier (Harborough): May I interrupt the proceedings, Mrs. Dunwoody, to ask you whether it is in order for gentlemen to remove their jackets?
The Chairman: The hon. and learned Gentleman certainly has my permission. It is a matter of sartorial choice.
Mr. Garnier: I knew that the hon. Member for Hendon (Mr. Dismore) was chafing to remove his jacket.
The Chairman: I always think that Members of Parliament have a clear view of themselves when they want to look as though they are in a dealing room.
Mr. Grieve: I endorse those sentiments, Mrs. Dunwoody, although I have not been in the House of Commons long enough to catch on to such trends. The idea of removing my jacket in court would have been anathema. I do not recall any occasion when that happened. Sometimes we removed our wigs, but not our gowns a subject that may arise later in our proceedings and about which I shall have much to say.
Amendment No. 40 proposes that "appropriate" should be left out of subsection (2)(a) and replaced by "necessary" . Examining the minutiae of legislation is often an exercise in semantics and about what certain words may mean. Doubtless, the Solicitor-General will tell us that it will be appropriate for satisfactory resources to be made available by the Lord Chancellor, pursuant to clause 6, for the funding of the services of the Legal Services Commission and the Community Legal Service. That matter causes us considerable concern. I am sure, however, that the Solicitor-General will have no difficulty in explaining some of the implications of the clause.
It is accepted that the existing legal aid scheme has many flaws, one of which is because of the element of it being a bottomless pit that a client who is financially eligible and has a meritorious case is entitled to legal aid. It is therefore demand driven; it is an important state provision to ensure that individuals should have access to justice. If more people require access to justice in one year than another, and so long as their cases fall within the merit criteria, they ought to be funded. Otherwise, they would be denied justice. Under the Bill, that system will be substantially altered. it will be based on the allocation of available resources. It will therefore be a cash-limited scheme. Not only that, but the cash limitation will depend, first and foremost, on how much has been spent or is being spent on criminal legal aid in that year.
Criminal legal aid will continue to be a bottomless pit, because the Government acknowledge the state's responsibility under the Human Rights Act 1998 to comply with the European convention on human rights. If the crime rate rises, or if the courts' throughput of work increases, the amount of money available for the Community Legal Service may decrease. That is a matter of considerable concern. The proposal to replace "appropriate" with "necessary" may seem a small change. By using "necessary" , I do not suggest the return of the bottomless pit. I seek to put an onus on the Government, the Lord Chancellor's Department and the commission that will administer the fund to justify the level of funding for civil legal aid.
I am fearful about the proposals. I say this in kindness to the Government, but if their budget projections are wrong, what will happen to those in civil litigation who are now entitled to funding? Shall we simply receive a letter from the Minister come January of the following year, saying, "I am terribly sorry, but no further funds will be available until the next financial year" ? Or will the Department impose a close budget and ratchet down the availability of funds irrespective of the merits of cases?
I would be happy if the Solicitor-General were to clarify how he sees the system working and in practice, rather than as a theoretical construct. It sounds very well, but when we get to the nitty-gritty, I fear it may prove to be a real problem. I am convinced that there will be a crisis unless people receive funding for deserving cases that meet the Government's and the commission's criteria. I move the amendment to probe a little, and to ascertain how the Solicitor-General intends the system to operate. Nothing in the Bill says how much money the Government intend to make available for civil legal aid.
I do not know whether the Government have made any projections, or whether the actuaries have become involved, but there is ample evidence that we are living in an increasingly litigious society. That is due not so much to lawyers as to the general climate and what some might call the arrival of the blame society, in which someone else is always considered to be to blame and is a target for paying up. That climate will not go away. I do not want to be sidetracked, Mrs. Dunwoody, or you will call me to order, but many other ways to fund legal aid, including the contingency legal aid fund, have considerable merit. The Government have not pursued these approaches in their reforms. I should be grateful to hear from the Solicitor-General how the resources necessary to meet the Government's commitment to access to justice will be supplied, and how that squares with clause 6.
In addition, in line 43 of page 4 we suggest that the words
"and may impose conditions on the payment of the sums"
be left out, which ties in with the other amendment. What are the conditions? What is the relevance of those words in the context of clause 6? I would be grateful if the Solicitor-General would consider that, as it might be taken to suggest although I am sure that he will tell me that it does not that conditions may be imposed that would greatly limit a person's ability to bring a case properly.
At a later stage, we will consider quality in terms of access to justice. At the moment, if one's lawyer is satisfied and advises that the expenditure is justified, one is likely to be granted legal aid, and it is unlikely that the Legal Aid Board will turn down one's request for an expert or for someone to go abroad to obtain evidence if necessary. What conditions can be imposed? Is this provision another blank cheque? By that, I mean a blank cheque for the Lord Chancellor rather than the person seeking to litigate.
One of the problems of the Bill is that it gives enormous powers of discretion to the Lord Chancellor and, through him, to the commission. That is all very well. I suppose that I must accept that the Lord Chancellor, being below only the sovereign at the top of this country's system of justice, ought to be benevolently inclined towards access to justice working. However, an anxiety remains because hitherto the system has not operated in this way. There are far more checks now on the way in which the Lord Chancellor's discretion may be exercised than there will be on his and the commission's powers of discretion in future.
I hope that we shall have some clarification on those points. I commend the amendments to the Committee as they add something to the Bill without detracting from the general thrust of what the Government have set out to achieve.
Mr. John Burnett (Torridge and West Devon): I am delighted to welcome you as Chairman, Mrs. Dunwoody. I am not sure whether there is a precedent in Committee for shirt-sleeve order, but I do not think that now would be a wise time to test that.
The Government have not yet been minded to accept the argument for separate funding of the Criminal Defence Service and the Community Legal Service. We all understand and appreciate that the funding of the Criminal Defence Service, in the interests of justice and in the light of our commitment to the European convention on human rights, has to be led by demand. No hon. Members argue with that fact.
However, we have discussed at length what Opposition Members consider to be the importance of having a separate fund for the Community Legal Service. That fund should be transparent and the sums in it should be gauged on its own merits. That does not mean to say that any more money should be spent on it, but that Parliament should have the opportunity to know exactly how much will be available for civil legal aid in any year. That would go some way to ensure that civil legal aid does not wither on the vine that the demands of the Criminal Defence Service do not deprive our fellow countrymen of more civil legal aid without warning or rational debate.
Amendment No. 40 would allow the Lord Chancellor to retain the abundance of discretion that he enjoys in the Bill, in so far as he has the right to determine the sums required for funding the Community Legal Service. The amendment goes some way to ensure that in exercising that discretion, the Lord Chancellor should be mindful of what is necessary, rather than appropriate, for the commission's funding of the Community Legal Service. The amendment is logical. It is no good going to such lengths to establish a Community Legal Service without giving it the necessary funding.
Amendment No. 41 boils down to a matter of trust. The Lord Chancellor will retain the right to determine the manner that and times at which sums for funding the Community Legal Service will be paid to the commission. However, the amendment would sweep away the Lord Chancellor's absolute right to impose conditions on the payment of such sums. Unless the amendment is accepted, one person, unelected and unaccountable the Lord Chancellor will have carte blanche to dictate to the commission exactly how to fund the Community Legal Service. I hope that the amendment will be accepted.
10.45 am
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