Standing Committee E
Tuesday 4 May 1999
(Afternoon)
[Mr. Bill O'Brien in the Chair]
Schedule 2
Community Legal Service: Excluded Services
Amendment proposed [this day]: No. 7, in page 58, line 28,
leave out from `help' to end of line 5 on page 60 and insert
`(beyond the provision of general information about the law
and the legal system and the availability of legal services) in
relation to—
(a) allegations of negligently caused injury, death or damage
to property, apart from allegations relating to clinical
negligence,
(b) conveyancing,
(c) boundary disputes,
(d) the making of wills,
(e) matters of trust law,
(f) defamation or malicious falsehood,
(g) matters of company or partnership law, or
(h) other matters arising out of the carrying on of a
business.
2. Advocacy in any proceedings except—
(1) proceedings in—
(a) the House of Lords in its judicial capacity,
(b) the Judicial Committee of the Privy Council in the
exercise of its jurisdiction under the Government of Wales Act
1998, the Scotland Act 1998 or the Northern Ireland Act 1998,
(c) the Court of Appeal,
(d) the High Court,
(e) any county court,
(f) the Employment Appeal Tribunal, or
(g) any Mental Health Review Tribunal,
(2) proceedings in the Crown Court—
(a) for the variation or discharge of an order under section
5 of the Protection from Harassment Act 1997,
(b) which relate to an order under section 4 or 10 of the
Crime and Disorder Act 1998, or
(c) under section 8 of that Act where the order is made by
virtue of subsection (1)(c) of that section,
(3) proceedings in a magistrates' court—
(a) under section 43 or 47 of the National Assistance Act
1948, section 22 of the Maintenance Orders Act 1950, section 4
of the Maintenance Orders Act 1958 or section 106 of the Social
Security Administration Act 1992,
(b) under Part I of the Maintenance Orders (Reciprocal
Enforcement) Act 1972 relating to a maintenance order made by a
court of a country outside the United Kingdom,
(c) in relation to an application for leave of the court to
remove a child from a person's custody under section 27 or 28 of
the Adoption Act 1976 or in which the making of an order under
Part II or section 29 or 55 of that Act is opposed by any party
to the proceedings,
(d) for or in relation to an order under Part I of the
Domestic Proceedings and Magistrates' Courts Act 1978,
(e) under the Children Act 1989,
(f) under section 30 of the Human Fertilisation and Embryology Act 1990,
(g) under section 20 or 27 of the Child Support Act 1991,
(h) under Part IV of the Family Law Act 1996,
(i) for the variation or discharge of an order under section
5 of the Protection from Harassment Act 1997, or
(j) under section 1, 2, 8 or 11 of the Crime and Disorder Act
1998, and
(4) proceedings before any person to whom a case is referred
(in whole or in part) in any proceedings within paragraphs (1)
to (3).'.—[
Mr. Hoon.)
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. 129, in page 58, line 33,
after `help', insert
`(other than the making of loans to individuals for the
purpose of payment of insurance premiums and disbursements in
proceedings specified in sub-paragraph (a)).'.
No. 42, in page 58, leave out lines 34 and 35.
No. 130, in page 58, line 35, leave out `proceedings for
clinical negligence' and insert—
(`(i) proceedings for clinical negligence,
(ii) cases for children and people suffering from a mental
disability,
(iii) cases where the overall costs are likely to exceed
£25,000,
(iv) cases where the costs of investigation are likely to
exceed £3,000,
(v) complex cases where damages are likely to exceed
£50,000,
(vi) cases involving multiple causes of action,)'.
No. 131, in page 58, line 35, at end insert
`, save where compelling reasons exist'.
No. 132, in page 58, line 40, at end insert—
`( ) A compelling reason for the purposes of paragraph 3(a)
above exists where;
(a) the case is one which a private client of sufficient but
not superabundant means would be likely to wish to pursue or
defend;
(b) it is not practical for the case to be conducted on a
conditional fee basis.'.
No. 71, in page 59, line 27, at end insert—
No. 55, in page 59, line 28, after `before', insert `the
Employment and'.
No. 72, in page 59, line 28, after `Tribunal', insert—
`( ) proceedings before Social Security Commissioners,'.
No. 53, in page 59, line 29, after `Tribunals', insert—
`(ga) proceedings before Adjudicators, Special Adjudicators
and the Immigration Appeals Tribunals,'.
No. 56, in page 59, line 29, after `Tribunals', insert—
`(ga) proceedings brought by an individual for defamation or
malicious falsehood consequential to or arising from the
termination of his employment'.
No. 73, in page 59, line 31, at end insert `, and
( ) proceedings in coroner's inquests into death, and
( ) public and judicial enquiries.'.
No. 43, in page 59, line 31, at end insert—
No. 49, in page 60, line 5, at end add—
`(k) proceedings as complainant under the Environmental
Protection Act 1990.'.
New schedule 1—Community Legal Service—
The Community Legal Service shall fund the following
categories of case involving personal injuries—
(a) cases for vulnerable clients (children and patients);
(b) cases where overall costs are likely to exceed
£25,000;
(c) cases where the costs of investigation are likely to
exceed £3,000;
(d) cases involving novel points of law;
(e) test cases;
(f) cases involving the wider public interest;
(g) multi-party actions;
(h) pharmaceutical claims;
(i) industrial disease cases;
(j) product liability cases;
(k) environmental cases;
(l) claims to the CICA or MIB (untraced drivers) or other
similar bodies;
(m) cases involving two or more experts on liability or
causation;
(n) complex cases where the damages are very substantial; and
(o) cases where adequate insurance is not available after the
event to the client at an affordable price.'.
Mr. Mark Todd (South Derbyshire): First, Mr. O'Brien, I
welcome you back to the Chair. I shall not detain the Committee,
because my hon. Friend the Member for Hendon (Mr. Dismore) said
many of the things that I would have said, but in a much more
competent fashion—and also in an incredibly precise time,
which allowed us to break for lunch more or less on the dot at
1 pm.
When considering new schedule 1, tabled by the hon. and
learned Member for Harborough (Mr. Garnier) and others, which
lists those personal injury cases that may be funded by the
Community Legal Service, it is critical also to consider those
cases that may be excluded from funding by the CLS. The statement
that all personal injury cases will be excluded is false. The
Bill clearly states that exceptions will be made and gives a
means of dealing with them. The briefing notes that we have
received show how those exceptions may be administered.
First, I seek a much clearer explanation of that process.
Exactly how will the consultation process proceed? Within what
timetable will the results be known? At what point could one
expect the Government to pronounce on the categories that may be
funded in personal injury cases? That information would be
useful. Secondly, by what process will the decisions be made? How
will exceptions be communicated to the Community Legal Service?
How final will that decision be? Is an appeal process envisaged?
Can further consideration be given to the finer points of whether
a case should receive state funding or be funded through an
insurance scheme?
As I said on Second Reading, my business experience
me that most cases are insurable. Once the insurance market is
established—the legal aid umbrella will no longer cover
many cases—it will flourish, providing a range of products
that will meet most circumstances. I rather resent the
characterisation that implied that a blanket set of restrictions
would apply, to which no exceptions would be made.
Mr. John Burnett (Torridge and West Devon): What is the logic
of excluding legal aid for personal injury work when, according
to the hon. Gentleman, it is likely to be reinstated?
Mr. Todd: I touched on my view—I speak as a non-lawyer,
in partial ignorance at least—on Second Reading. First, a
genuine saving of public money can be made from that exclusion,
although I would not claim it to be a substantial sum of money.
Secondly, it will reduce the administrative cost of the existing
arrangements for establishing legal aid. That, too, is a fair
consideration. However, the hon. Gentleman will get a better
answer from my hon. Friend the Minister of State; he will have
heard the question and will, I am sure, be able to give a far
more authoritative and thoughtful response.
I am concerned that in considering the Bill without a proper
framework to establish exactly how exceptions will be dealt with,
the Government have laid themselves open in many cases to
unjustified criticism in that they can respond only by saying
that some cases may be supported as exceptions. I refer to the
cases presented in The Lawyer about which there was disagreement
as to whether they would be funded. The difficulty is that
although one can reasonably assert that they probably would be
funded, the certainty that many people would like to have in
pronouncing on a new legal framework is lacking. We should be
challenging Ministers about that.
We owe it to those who rely on legal aid to explain more
thoroughly how to deal with exceptions if disagreements arise on
the merits of a case compared with the criteria that have been
set down so far. I am thinking especially of disagreements
involving test cases or the wider public interest which will, by
definition, involve matters of opinion. It will not be possible
to say that such a case obviously involves the wider public
interest. An argument must be presented and a decision will be
taken and delivered on behalf of the Government.
How can such a judgment be challenged if someone disagrees
with it? Does he or she simply have to take the rough with the
smooth? Of course, the existing system also offers rough
decisions in the way in which legal aid is handed out—it
is by no means a universal provision for every case that may have
merit. Those are my concerns, and I look forward to hearing the
Minister's answers.
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