Legal Aid, Sentencing and Punishment of Offenders Bill
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The Minister of State, Ministry of Justice (Lord McNally)
I am pondering whether to say, “If the noble Lord, Lord Thomas, is playing into the Government’s hands, it would be for the first time”, but I will not. Instead, I will simply say that we have taken a decision on the shape of this Bill which we have continued to explain. We have returned to a number of issues around that, and this amendment seeks to include a power within the Bill to fund the not-for-profit sector to do work that is outside the proposed scope of the civil legal aid scheme. I acknowledge that a number of noble Lords have concerns about the sustainability of the not-for-profit sector, and I will return to that later. However, to seek to include a provision within the Bill to fund the sector for work outside the proposed legal aid scheme is, in our view, unnecessary. Not-for-profit providers have been eligible to compete for legal aid contracts since 2000, and while the proposed changes set out in the Bill will impact on the type of cases they currently handle, future contracts for work that remains in scope will continue to provide opportunities for such organisations to bid to deliver legal aid services.
It is also unnecessary to provide for such specific powers in the Bill, as the Ministry of Justice can provide grants to organisations promoting Ministry of Justice objectives. For example, both the Ministry of Justice—
Lord Goldsmith
Is the Minister able to tell the Committee whether any analysis has been done to see which areas of law are currently used to fund not-for-profit agencies, but which are now going to be taken out of scope? At the moment a lot of housing work, employment and welfare law is done. If that all goes out of scope, how will the not-for-profit agencies get any of the contracts that the Minister is talking about?
Lord McNally
They will bid for them. It is as simple as that. They are in a market where they will be able to bid for this work.
Lord Goldsmith
If the work that they are doing is out of scope, how do they get a contract? I have obviously misunderstood something.
Lord McNally
They will not get a contract for work which is not within scope of the Bill. That is why we keep on going round in circles. As the noble Lord said, he wants to put this sector back into the scope of the Bill. We do not want to do that.
Lord Goldsmith
The Minister said that the answer for the not-for-profit agencies is that they can bid for contracts. If at the moment they are bidding largely for work relating to housing, welfare and employment—things that will go out of scope—what contracts will they bid for? My specific question was whether the Minister or his department had done an analysis so that we might see what percentage of the money that the agencies have up to now received would no longer be available because it would be for work which was out of scope.
Lord McNally
I will have to promise to write to the noble and learned Lord.
Lord Bach
The Government may not have done that analysis, but the Law Centres Federation and the CABs have. I do not have the precise figure in my head, but law centres would do about 70 per cent less work because of the matters that are taken out of scope. It would not be quite as much, of course, in the case of the CABs, but they would have a much reduced caseload which would make their existence in some cases doubtful. That work has been done by the agencies, but I agree with my noble and learned friend that the department should perhaps confirm those figures or come up with some new ones. The agencies are going to lose work.
Lord McNally
Of course they are going to lose work in the areas that are being taken out of scope. That is self-evident. I make no complaint about it, but we continually have brandished at us reports from organisations with, to put it bluntly, an interest in the issue. It can at least be examined thoroughly. Organisations which have been involved mainly in areas which are being taken out of scope will find that that work is no longer there, which will have an impact on some of them. However, they will still be free to bid for work which is within scope. We can go round that time and again.
Lord Phillips of Sudbury
I know that my noble friend is trying to get into his speech but, en route, important issues come up, and one has a duty to the Committee to continue with them. Does he not appreciate—I do not think that he can—first, that local authorities, because of their financial stringencies, have withdrawn grants to law centres and CABs all around the country and, secondly, that, if the centres can no longer do the work that is taken out of scope, many if not most of them will simply shut their doors and go away? The consequence of that, my noble friend will, I am sure, recognise.
Lord McNally
Throughout the passage of this Bill, assertions are made about what is going to disappear and the nightmare of a country without CABs—to quote my noble friend. Unlike the noble and learned Lord, Lord Goldsmith, I cannot airily, as he did in his intervention, say, “£20 million? That is not enough. Perhaps we should put another nought on the end”.
Lord Goldsmith
I did not say that; with respect, the Minister should listen. I said that I did not know whether £20 million was enough. That is something that I would like to hear from the Minister, either now or at a later stage of the Bill.
Lord McNally
Throughout the Bill, we have tried to restructure legal aid so as to deal with the most vulnerable in our society in a way which we think is fair. My noble friend Lord Phillips referred to the squeeze being put on CABs by local authorities. There have been squeezes on local authorities and on the Ministry of Justice. The country is having to readjust to a considerable degree to what is available for many good causes, and that is why this debate is reoccurring in Committee.
As I say, I recognise the general concern about the future of such funding. I hope I can reassure the House by making it clear that the Government value the services provided by the not-for-profit sector and are committed to ensuring that people continue to have access to good-quality free advice in their communities. That is why the Government have launched the advice services fund and a review of free advice services. The Government have set aside £20 million to support the not-for-profit sector. That is about the seventh time of announcement but, to provide clarity for the noble Lord, Lord Beecham, I say that it is still the same £20 million. This fund will provide immediate support for the not-for-profit advice service providers to deliver essential services in debt, welfare benefit, employment and housing advice. An announcement on the fund and review was made on 21 November by my honourable friend Nick Hurd MP, Minister for Civil Society, in the other place.
It is important to recognise that legal aid is only one of several funding streams that not-for-profit organisations receive and that the future sustainability of the sector is a cross-government issue which this Bill cannot be expected to solve on its own. Accordingly, alongside the advice services fund, the Cabinet Office is conducting a review into local advice provision, looking at the funding environment for these services, likely levels of demand and how government can play a positive role. The Cabinet Office will work with other departments that either fund advice services or whose activities have an impact on advice services, such as my department, the Department for Business, Innovation and Skills, the Department for Work and Pensions, the Department for Communities and Local Government, and the Treasury.
The House may also be reassured to know that both the Prime Minister and the Deputy Prime Minister are taking a keen interest in these reviews. Stakeholder events with representatives from the sector, to gain their input into the review, have already been held by the Cabinet Office. I urge the House to await the conclusions of that review, which is expected in the spring. My officials are working closely with colleagues across government to support this important work. I hope this will reassure the Committee that I and my colleagues in government are united in our efforts to support the not-for-profit sector while it adapts to difficult changes in the funding landscape. I therefore urge the noble Lord to withdraw his amendment.
Lord Thomas of Gresford
My Lords, I am grateful to all noble Lords who have spoken in the debate and I accept all the criticisms that have been made as no doubt very well founded. In his reply, my noble and learned friend—
Lord Thomas of Gresford
No—but you will be by the time I have finished.
In his reply my noble friend said that we must await the conclusions of the group that is looking into this matter, which has already taken advice, as I understand it, and carried out various consultation processes. I want to know when it is going to report. I have discovered that in government departments the spring can turn quickly into the summer. The Bill will be through this House by the middle of March and we would all be much happier if we were assured by that time that the future of the CABs, the law centres and so on is secured to give precisely the advice for which the grant was announced in November—for welfare, for employment and so on—as the noble Lord said.
I am anxious that the group should get a move on and that we should receive these reassurances so that we can be confident that the gap that will arise through the withdrawal of legal aid will, to a degree, be filled. I understand the position of the noble Lord, Lord Bach. He does not want anything to interfere with the general thrust that everything in social welfare law should go back under Part 1. Indeed, voices on my Benches have made exactly the same comments, including me. However, if that is not to happen we must be sure that there is a source of advice in these very important areas which will be available to the citizens of this country. At the moment, I ask leave to withdraw the amendment.
Lord Beecham
My Lords, in principle I welcome the notion of a review and some of the provisions that are effected in the amendment clearly make sense. However, despite the most distinguished provenance of the amendment I am left in doubt as to some of the wording and/or implications of what is proposed.
To begin with, the only duty on the Lord Chancellor, apart from initiating the review, is to lay a report before Parliament. There is no obligation for him in any sense to implement the review or to make changes having regard to the review. One fears that such a report might meet the fate of the infamous Black report—or the famous Black report that was infamously treated—in 1980, which some Members of the Committee will recall was published just before a bank holiday and disappeared from view thereafter. In other words, all we are getting is a report.
Moreover, the report, although it talks about the procedures and costs of claims, apparently is not required to deal with the funding of such claims. It talks about the costs but does not direct the person appointed to carry out the review and to report or comment on funding mechanisms—as I read it. The noble Lord, Lord Phillips, may put me right when he replies. It is quite sensible to have a provision that the reviewer may propose a,
“voluntary scheme or schemes as he or she shall see fit”,
but I am not quite clear what is meant by “voluntary scheme”. Is it a voluntary scheme of advice, or of conducting cases?
Subsection (6) defines “claims” as meaning,
“claims and complaints made by patients receiving services provided in the United Kingdom and commissioned in England”.
I am not quite sure what that means. Is it a reference to the Welsh situation? Does it mean that a clinical commissioning group, or indeed that a claimant of the nature of a private patient seeking treatment in a hospital in another part of the United Kingdom, would be subject to review in this report even though a claim might arise outside the jurisdiction of the English courts? It certainly is not clear to me quite what is intended, so although I certainly support the principle I am not sure that what is being sought here in detail quite meets the aspirations of those who drafted the amendment—let alone being sufficient to secure the support of the Minister. He will no doubt tell us what he thinks shortly.
If this matter is going to be pursued, it really needs some further thought and elaboration. If it is brought back at Report, it might be better to do so in a clearer form and, in particular, not to create a situation in which all that is produced at the end of it is a report which can be kicked into touch.
Lord McNally
My Lords, I would hope to persuade the Opposition not even to support the principle of this amendment, which says:
“The Lord Chancellor must, before the end of the period of one year beginning with the day on which this Act is passed, appoint an independent person to review generally claims for clinical negligence and means of improving the modes, procedures and outcomes relating to the same”.
We would prefer to stick to the process established by the previous Government, which put in place post-legislative scrutiny of Acts of Parliament. The aim is to complement the Government’s internal departmental scrutiny with parliamentary scrutiny, principally by committees of the House of Commons, to provide a reality check on new laws after three to five years.
As set out in the Cabinet Office guidance, these reviews normally take place within three to five years of Royal Assent. The responsible department must submit a memorandum to its departmental Select Committee, which will then decide whether it wishes to conduct a fuller post-legislative inquiry into the Act. Of course, the House will be free to debate the committee’s findings should it choose to conduct a review into the Act. In addition to this post-legislative scrutiny, the impact assessment for the specific policies in the Bill is accompanied by a post-implementation review plan. It is intended to review each policy between three and five years after the implementation date.
Noble Lords may also be aware that the Government have conducted a public consultation this year on how lower value cases should be dealt with more efficiently in the county courts. We are working closely with the National Health Service Litigation Authority to consider whether a lower value scheme similar to that which is currently operating for low-value road traffic accident cases would work for lower value clinical negligence cases. At the same time, we are actively considering the Government’s response to the consultation and will publish the response in the near future. In the light of these remarks, I hope that my noble friend will withdraw his amendment.
Lord Phillips of Sudbury
Before my noble friend sits down, could I be perfectly clear about what he said at the start of his response? Is he saying that there will be a formal review of clinical negligence in the course of reviewing the whole of this Act, as it will become?
Lord McNally
Yes. I have been one of the strongest supporters of post-legislative scrutiny, and I am just putting it in place in terms of the Freedom of Information Act. The Justice Committee in another place has just taken from the Ministry of Justice a full assessment of how that Act has been working and will then take evidence. I would have thought it inconceivable that such post-legislative scrutiny would not examine the issues relating to clinical negligence.
Lord Howarth of Newport
I apologise to the Committee that I was not able to be here at the beginning of this debate. In the Minister’s view, does the legislation as drafted provide the flexibility to enable the Lord Chancellor to respond constructively and effectively to such findings as a review might produce at a suitable interval?
Lord McNally
Yes. If it did not, presumably we would bring forward primary legislation to correct it, but that is the parliamentary process.
Lord Phillips of Sudbury
My Lords, I thank the Minister for his reply. I was going to say that I thanked the noble Lord, Lord Beecham, for what he said—I sort of do. I will not play legal games with him at this time of night, but if this is brought back I will certainly read carefully the points that he made.
As for the Minister’s reply, my sense is that the review that I am calling for in Amendment 99A is far more particular and focused than any review that would come forth under the general review of this legislation, not least because clinical negligence has only a very limited part to play in it. Further, the Bill deals with the scope of clinical negligence in terms of legal aid, not with the detailed functioning of clinical negligence litigation. I would like to read what the Minister has said and perhaps have a conversation with him before Report in order to see whether there is any point in persisting with the nub of this amendment. I beg leave to withdraw the amendment.
Lord McNally
My Lords, if I may interrupt, this may ruin a few speeches but I think it will help if I say that the Government intend to table an amendment to Clause 12 on Report that will remove the power to introduce means testing for initial advice and assistance at the police station.
Lord Macdonald of River Glaven
My Lords, I have never achieved such remarkable success with so few words. In those circumstances, I shall withdraw my amendment. I thank my noble friend for what he has just said.
Lord McNally
I assure the House that it was my noble friend’s eloquence that produced that result.
Lord Wigley
Can I be clear that the proposals that the Government are bringing forward—I have an amendment in the Marshalled List that is almost identical to this one—will cover all the worries that have been built into the amendments today, and that they are not a superficial way of getting out of the debate today?
Lord McNally
How unworthy! The test of that will be what we bring back on Report, but this is not a way of dodging a debate tonight.
Lord Carlile of Berriew
I hesitate to interrupt my noble friend, but we are curtailing the debate and what he has said is very helpful. Can he assure the Committee that, in preparing an amendment, the Government have in mind the importance of the duty solicitor scheme and of there being a process of integrity in the police station, so that suspects do not choose to refuse to answer questions in interview because they are not properly represented? Can he also assure us that the Government will bear in mind the risks of evidence obtained in police stations being rejected by courts because of a failed and unfair procedure in those police stations? Those of us who started practice at the Bar would say to my noble friend that there were long periods in our early practice when we cross-examined police officers about what used to be called “verballing”. I am sure that my noble friend understands the expression. I hope that whatever amendment is introduced will ensure that we do not have to return to the bad old days before the enactment of the Police and Criminal Evidence Act 1984.
Lord Bach
My Lords, this concerns a very simple point, or rather a short one—I am not entirely clear whether it is simple. I would be grateful for the Minister’s response to this.
Clause 14 is headed “Advice and assistance for criminal proceedings”. Subsection (1) refers to regulations providing,
“that prescribed advice and assistance is to be available under this Part to an individual described in subsection (2) if … prescribed conditions are met, and … the Director has determined that the individual qualifies for such advice and assistance”.
That is fine. Subsection (2) sets out in paragraphs (a), (b) and (c) three classes of individuals who will be entitled to this advice and assistance. My amendment would add a fourth class of,
“individuals who are involved in investigations which may lead to a caution or warning”,
as opposed to,
“individuals who are involved in investigations which may lead to criminal proceedings”.
I admit that it is a long time since I practised, but I understand that people who are cautioned are liable to have that caution recorded and for it to be on their record for a period of time. In those circumstances, would it be better for that class of person to be granted advice and assistance, as are the persons covered by paragraphs (a), (b) and (c)? I will not argue with the Government if there is a good reason for not including that class of person. I just want to hear why there is not a fourth class of person covering,
“individuals who are involved in investigations which may lead to a caution or warning”.
I beg to move.
Lord McNally
My Lords, as the noble Lord has said, Amendment 103 would allow the Lord Chancellor to provide specifically for criminal legal aid under Clause 14 to be available for individuals who are involved in investigations that may lead to a caution or warning.
Clause 14 creates a power to make regulations that prescribe what advice and assistance must be made available to individuals in connection with criminal proceedings if prescribed conditions are met and the director has determined that a person qualifies for such advice and assistance in accordance with the regulations. This largely reflects the provisions in Section 13 of the Access to Justice Act 1999. Advice and assistance for criminal proceedings is distinct from criminal legal aid provided under Clause 12 for individuals in custody.
Under the Access to Justice Act 1999, the Legal Services Commission has the discretion to decide what advice and assistance it considers it is appropriate to fund. Under the Bill, this discretion rests with the Lord Chancellor. In making a decision, the Lord Chancellor will take account of any legal obligations including the requirements of Article 6 of the European Convention on Human Rights. Both sets of provisions leave the criteria for making a determination to secondary legislation.
The proposed amendment would allow the Lord Chancellor to make provisions that legal aid may be available for individuals who are involved in investigations that may lead to a caution or warning. We believe that it is unnecessary to add the suggested amendment as provision could already be made under Clause 14(2)(a). If an individual is involved in an investigation that may lead to a caution or warning, that individual must be involved in an investigation that may lead to criminal proceedings. Cautions and warnings are used, where it is appropriate to do so, to divert certain offenders from the criminal justice system as an alternative to instigating criminal proceedings. For an individual in custody at a police station, or other premises, legal aid will be provided under Clause 12. I therefore invite the noble Lord to withdraw the amendment.
Lord Beecham
My Lords, this amendment refers to Clause 16, which sets out the principles on which qualification for representation for legal aid can be determined. This is basically a probing amendment. Subsection (3) states:
“The Lord Chancellor may by order amend subsection (2) by adding or varying a factor”,
to or of the five factors set out in subsection (2). I apprehend that the Minister will confirm that such an order will be subject to the affirmative procedure. Given that the qualifications for representation for criminal legal aid are at stake, it is particularly important that that should be the procedure. If that is the case, the Opposition will be entirely satisfied and the amendment will be withdrawn.
Lord McNally
My Lords, as the noble Lord said, the amendment would omit subsection (3) from Clause 16. This provides a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). The Access to Justice Act also contains such a power at paragraph 5(3) of Schedule 3 to that Act. Any order made under Clause 16(3) would be subject to the affirmative procedure.
The factors in the interests of justice test broadly reflect the requirements of the European Convention on Human Rights, which, at Article 6(3)(c), provides expressly for a right for a person,
“to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”.
We see no reason now to depart from the principle established in current primary legislation that it is appropriate to provide a power for the Lord Chancellor to use secondary legislation to add to or vary the list of factors in subsection (2). This allows for the flexibility to react to any developments in relation to factors relevant to the interests of justice requirement. As I have said and as the noble Lord asked, these would be subject to the affirmative procedure. I therefore urge the noble Lord to withdraw the amendment.
Lord Beecham
I am most obliged to the Minister for that assurance. For future reference, it might be helpful in these cases if it were to be made clear in the Bill that the affirmative procedure would be used. It would save a little time. However, we have not spent much time on this and I beg leave to withdraw the amendment.
Lord McNally
My Lords, at this late hour this debate is taking on a confessional nature. There has also been a little bit of topsy-turvy. For a time, I was just sitting back while the noble Lord, Lord Bach, and his colleagues were rubbishing the amendments tabled by my noble friend Lord Thomas and his colleagues, and now I am going to defend the activities of the previous Government.
As has been explained, the amendment is intended to allow the restrained assets of those accused of criminal offences to be taken into account when granting legal aid and to allow legal expenses to be paid from a defendant’s restrained assets. Before the next debate, I must check on the noble Lord’s distinguished career in government as I am not sure whether he was responsible for the Proceeds of Crime Act 2002. Was it on his watch?
Lord McNally
Nevertheless, the previous Government passed the Proceeds of Crime Act 2002, which prevents restrained funds being released to a defendant for legal expenses in relation to the offences to which the restraint order relates. The Committee will be aware that assets recovered from the proceeds of crime are already applied to offset the overall costs to the public purse, although I note the points made by the noble Lord, Lord Carlile, about the success of confiscation orders. The noble Lord, Lord Thomas, will know that when he put this idea to me, it seemed very attractive with a little Robin Hood stuff about it. However, the reason that the previous Government took action through the Proceeds of Crime Act was that in their judgment there was a risk that individuals might recklessly dissipate assets through lavish spending on their defence in order to try to secure an acquittal at any cost. In 2002, the then Government decided that it was better to allow access to legal aid than to allow an individual to draw down restrained funds to pay for their defence. Restrained assets in these cases are suspected to be the proceeds of crime. They are not therefore legitimate money, and they should not be used to fund the costs of a person’s defence lawyers. First and foremost, the victims of crime ought to be compensated for their loss.
Lord Carlile of Berriew
Before my noble friend goes down this course, which is an accusation that defence lawyers are simply going to charge what they like and take as much as they want, will he read his own clause? Nobody is saying that defence lawyers should be able to say, “Okay, I’ll take £1,000 an hour for representing you”. It is all subject to regulation and to the kind of limitations that currently apply through the LSC. What the Minister is saying at the moment simply does not recognise what the amendment provides. Will he please answer the amendment?
Lord McNally
I think the noble Lord protests too much. I was explaining to him the motivations of the previous Government for bringing in the Proceeds of Crime Act.
Baroness Buscombe
My Lords, I was the shadow Minister on the Proceeds of Crime Bill. I have rather a good memory, and I can say that the Minister is absolutely accurate in his comments about why the Government chose not to use the Proceeds of Crime Act as an opportunity for dealing with this issue.
Lord Bach
It is very good to have the noble Baroness, Lady Buscombe, joining the debate, but if that was the best defence that the previous Government could put up for that, it was really not satisfactory. I remind the Minister that that argument has been described as,
“fallacious, and easily remedied by the simple implementation of a cap on defence fees, careful supervision by the court and/or an assessment by the court taxing officers, who are familiar with assessing what constitutes ‘reasonable’ costs in such cases”.
If that was the argument put forward by my Government at that time, I say here and now that it was a fallacious argument and not one that the present Government should fall into the trap of adopting.
Lord McNally
As I said, we are in confessional mood tonight. The Government are currently considering a related proposition under which the value of restrained assets might be taken into consideration in the Crown Court means test. Until that proposition has been considered fully, we believe it premature to suggest an amendment to the Proceeds of Crime Act.
This has been an interesting debate. We have heard what the noble Lord, Lord Bach, said in apology for previous omissions by his own Government. As I say, we are looking at the value of restrained assets in the Crown Court, but at the moment we believe it premature to suggest an amendment to the Proceeds of Crime Act and I therefore ask my noble friend to withdraw his amendment.
Lord Thomas of Gresford
The problem is that my noble friend the Minister has not explained why people are allowed recklessly to dissipate criminal assets in civil cases. Why do you have one rule for civil cases, when you can use what are described as criminal assets although they are not necessarily so, and another rule in criminal cases? What is happening at the moment is that defendants are recklessly dissipating legal aid. That is the point and that is why legal aid is so high in criminal cases—it is being recklessly dissipated. My noble friend Lord Carlile explained how it can be done: you can have application after application; you can have little trials within trials; you can have satellite litigation; and the case can run on and on for months.
In the old Stafford Assize Court, which possibly the noble Lord, Lord Bach, has visited—
Lord Beecham
My Lords, this is one of four amendments with which I hope to deal in pretty short order. It relates to the provisions in Clause 20 and the determination of financial resources for legal aid. Clause 20(6) provides for,
“determinations to be made and withdrawn in writing, by telephone or by other prescribed means”.
That is not very satisfactory because it does not leave a sufficient audit trail. In any event, verbal communication, and possibly online communication, may not be suitable in all cases given the variable capacity of people to manage telephonic or online communication. In particular, if an appeal is made to the magistrates’ court subsequent to a determination, it is necessary to have that audit trail. Hence, the amendment proposes that the communication should be in writing and not by telephonic or other electronic means. I beg to move.
Lord McNally
My Lords, concerns about the proposal to establish the community legal advice helpline as the mandatory single telephone gateway in four proposed areas of law were the subject of considerable debate in Committee on 20 December. Given that, and for the purpose of today’s debate, I will therefore address solely the specifics of this amendment as they relate to Clause 20.
Amendment 110 relates to the method by which determinations about financial eligibility for legal aid are made and withdrawn. It would require all determinations about financial eligibility to be made or withdrawn in writing to the person making the legal aid application. It would therefore stop determinations about financial eligibility being made or withdrawn by telephone, or by other prescribed means, thus of course affecting the proposed mandatory single telephone gateway. However, this amendment would go much further than just affecting the gateway. It would seriously affect the financial and operational viability of the provision of legal aid advice by telephone altogether.
In Committee, the noble Lord, Lord Bach, described existing telephone advice provision as “excellent” and,
“a fantastic channel for delivering advice”.—[Official Report, 20/12/11; col. 1759.]
This excellent service is provided through the community legal advice helpline. Currently included in this service is the making and withdrawing of determinations about financial eligibility by telephone.
Determinations about financial eligibility are currently made immediately upon receipt of a call by the community legal advice helpline. No suggestion has been made that the system has not operated effectively and efficiently. This would add considerable time, cost and complexity to the provision of civil legal aid services by telephone. It could delay in particular callers who are not financially eligible for legal aid but are provided with alternative sources of assistance. It could also delay those who are eligible for legal aid help receiving it, as staff and resources would be involved in completing and sending out notifications about eligibility.
Determinations are made after asking precisely the same questions of all callers as face-to-face legal aid providers would ask. Where a person is eligible, they will usually start to receive help on the same day. They do not have to wait perhaps a few days or more for an appointment before their eligibility can be assessed or before they can start to receive help to address their problem, as a person walking into a face-to-face provider’s office may have to do.
In addition, Clause 11(3)(h) means that individuals will have the reasons for the making of a determination explained to them. It will, however, not necessarily be in writing. The assessment of financial eligibility through the community legal advice helpline also filters out those who are not financially eligible for civil legal aid. This assists those individuals by allowing them to receive information about suitable alternative sources of assistance immediately after that assessment is made, enabling them to begin to take alternative action to address their problem promptly and with the minimum of delay.
The current community legal advice helpline is a well used route to access civil legal advice. It offers a high-quality service and works well—the noble Lord’s description of it as excellent is testament to that. The Government understand the concerns behind Amendment 110, but restricting or preventing the operation of the community legal advice helpline will not help those who are in most need to obtain legal aid advice services to help them resolve their problem. This amendment is not in their best interests and I urge the noble Lord to withdraw it.
Lord Wigley
My Lords, the Minister said that he would address the narrow parts of this amendment because of the debate that took place before Christmas on some of the broader issues. Before we move on, can he tell the Committee whether the Government have given further consideration to some of the aspects that were exercised at that time, particularly with regard to the need to make sure that disabled people do not miss out in this process?
Lord McNally
The answer I gave in our December debate was that we are looking at the points raised. We are in contact with representatives of disabled groups to ensure that the facilities that are available through the helpline will enable all aspects of disability to be dealt with in an effective way. I hope that that reassures the noble Lord.
Lord Wigley
If I understand it correctly, the Government are still looking at the representations being made in this area in order to make sure that disabled people do not miss out. Have I understood that correctly?
Lord McNally
Yes. As I said after that debate, we will continue to liaise with the disabled organisations to ensure that we are getting this right.
Lord Beecham
My Lords, I regret to say that I do not find the Minister’s answer satisfactory. It is true that many people find the telephone advice line to be perfectly acceptable, but others do not. Telephone advice lines are not the best option for delivering advice to older people, those with language difficulties or those who do not understand English very well. However, this is not about advice; it is about the determination of financial eligibility, and there may be cause for people to appeal against decisions. It is difficult to do that on the basis of a telephonic communication. That is all this amendment requires. Although I beg leave to withdraw the amendment, I cannot say that the Minister has satisfied us about the difficulties which we envisage the proposal will create. It might be something that we have to return to.
Lord Beecham
My Lords, we return again to affluent criminals in a slightly different context. This amendment refers to the definition of an individual about whom information is requested for the purposes of a determination about that individual’s financial resources. The Bill defines such an individual as an “individual”, which is helpful, and goes on to say,
“and any other individual whose financial resources are or may be relevant for the purposes of the determination”.
The problem is that this may not cover, for example, a limited company or possibly a trust effectively controlled by the individual whose financial circumstances are being investigated. The purpose of the amendment therefore is to extend the definition to ensure that any connected companies or trusts are included in the assessment. It may be that the noble Lord will want to take a further look at this, but we are seeking to ensure in a different context the kind of approach advocated by the noble Lords, Lord Carlile and Lord Thomas, in respect of cases—in admittedly slightly different circumstances—where there are means which ought to be brought into account. I beg to move.
Lord McNally
My Lords, Amendment 111 relates to Clause 21, which provides a gateway for the disclosure of certain information to the “relevant authority”, defined as the director of legal aid casework or other person prescribed by the Department for Work and Pensions, Her Majesty’s Revenue and Customs and the equivalent Northern Ireland department. The information can only be requested by the relevant authority for the purpose of facilitating a determination about the individual’s financial resources for legal aid; that is, for the purpose of finding out whether they are financially eligible for legal aid. The categories of information that may be requested are listed in subsections (3) and (4) of Clause 21. Those categories refer to types of information in relation to a relevant individual. A “relevant individual” is defined in Clause 21(8) as meaning the individual seeking legal aid and any other individual whose financial resources are or may be relevant for the purposes of determining financial eligibility for legal aid.
We intend as at present to continue to require those applying for legal aid to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about such companies. More generally, applicants are required to disclose whether they receive any support from a third party, including an individual company or trust. Funding may be refused if this information is not supplied. In relation to companies, it is also possible to conduct an additional search through Companies House. There are indeed circumstances in which such information may be relevant. The Bill includes at Clause 24 a power that will enable the Lord Chancellor by regulation to require or permit the resources of a person other than the client to be treated as the resources of the client. That is currently done under the existing financial regulations.
Regulation 11 allows the resources of a person who is, has been or is likely to be substantially maintaining the client to be treated as the resources of the client. Regulation 11 also allows the resources of another person that have been or are likely to be made available to the client to be treated as the resources of the client. Regulation 12 provides a power to take into account resources that the client has either transferred to another person, deprived themselves of, or converted into resources that would be disregarded for the purpose of reducing their resources. For the purposes of those regulations, “another person” can mean a company, partnership, body of trustees and any body of persons corporate or not corporate. The effect is to prevent applicants for legal aid avoiding a full assessment of their resources by, for example, transferring them into the name of a company.
I return to Clause 21. The information listed in subsections (3) and (4) is about individuals because it is basic information such as date of birth, national insurance number and employment status, which can be related only to an individual. However, the information listed in subsection (4), which can be requested from HMRC, includes information about whether a relevant individual is carrying on a business, trade or profession, as well as further information—for example, the name of the business and its address.
As I have said, those applying for legal aid will continue to be required to disclose any company directorships, positions or shareholdings in companies and to provide detailed information about any such company. It is therefore inappropriate and unnecessary to extend the definition of “relevant individual” to include companies and other legal persons. I hope that, with that explanation, the noble Lord will withdraw the amendment.
Lord Beecham
My Lords, the Minister has given a clear indication that the objectives of the amendment are likely to be met by the present operation of the system. In those circumstances, I beg leave to withdraw the amendment.
Lord Thomas of Gresford
I thought there was a printer’s error here: that is why I inserted “not”. It is not a matter of principle; I could not imagine that the Government would require someone’s contribution to exceed the costs and put money into the hands of the Lord Chancellor. I do not see any reason for that and I await the explanation with interest.
Lord McNally
This had better be good. Amendments 112 and 113 would prevent anyone in receipt of civil legal aid being required to pay an amount for that legal aid which exceeds the amount of the legal aid itself. We intend to use the powers in subsection (3) to establish a supplementary legal aid scheme which will provide an additional source of funding to supplement the legal aid fund. As indicated in our response to the consultation on legal aid reform, under this scheme 25 per cent of damages obtained by successful legal-aided parties, other than damages for future care and loss, will be recovered by the legal aid fund. The supplementary legal aid scheme will apply to successful damages cases where the successful party is legal aided, including any out-of-scope cases which are funded through the exceptional funding scheme.
The provision at subsection (3) is not new. There is already an equivalent provision in Section 10(2)(c) of the Access to Justice Act 1999, which allows for the establishment of a supplementary legal aid scheme whereby a legal-aided person makes a payment exceeding the cost of the services received. The power has not been exercised to date but, as we have made clear, we intend to do so in the future, so it is important that the Bill retains the provision to enable this.
At a time when the public purse is constrained, the funds recouped by the supplementary legal aid scheme will help to put legal aid on a sustainable footing and therefore help support the funding of civil legal aid cases. Besides creating a valuable additional source of funding for legal aid, in setting up the supplementary legal aid scheme we are addressing the interrelationship between legal aid and the proposal for reform to the cost of civil litigation put forward by Lord Justice Jackson and reflected in Part 2.
We want to ensure that, so far as it is possible to do so, the recovery level of damages by the supplementary legal aid scheme is consistent with the Jackson reforms to ensure that conditional fee agreements are no less attractive than legal aid. We have therefore selected a recovery level of 25 per cent of all damages, other than those for future care and loss. This mirrors the maximum level of damages that a solicitor will be able to claim from a successful client under a conditional fee agreement in a personal injury case. Under the Jackson proposals, there will also be an increase of 10 per cent in non-pecuniary general damages such as damages for pain and suffering and loss of amenity in tort cases for all claimants. This will help claimants to pay their CFA success fee or supplementary legal aid scheme contribution.
With that explanation, I hope the noble Lord will agree to withdraw his amendment.
Lord Beecham
My Lords, I am not in a position to say and I fear—perhaps I am wrong—that the Government are not in a position to say either, which is part of the point. There does not seem to have been a consultation. There may or may not have been an assessment of the impact, but there certainly ought to be. As I say, this provision has come out of left field, to quote the noble Lord, Lord Thomas, on an earlier point. It really ought not to be progressed until there is a proper assessment of its impact, in consultation with the profession.
In any event, it seems there is something of an issue of principle as to whether the statutory charge should apply not just to the property secured by legal aid but to costs paid by the opposite party, as a contribution towards the total costs incurred on behalf of a claimant. That seems to be a novel principle and one which, as I say, came out of the blue and certainly needs justification. On the face of it, it is difficult to see what the justification would be. I beg to move.
Lord McNally
My Lords, I hope to end the evening on a reassuring note. We recognise that by virtue of the specific reference to costs, the language of Clause 24(1) is different from that in the equivalent provision at Section 10(7) of the Access to Justice Act 1999. However, we consider that costs are capable of falling within the existing provision on the statutory charge as,
“property recovered or preserved by”,
a legally aided person. In any event, I reassure noble Lords that Clause 24 does not represent a change of policy and will not result in any change to current practice.
The provisions in Clause 24 reflect existing practice by protecting the interests of the Legal Aid Fund in the same way that those interests are currently protected by the provisions of the Community Legal Service (Costs) Regulations 2000. For example, the provision in those regulations regarding payment of money due to a legally aided person relate to all such money, including any costs awarded. We therefore have no intention of altering the existing position that operates in cases where interparty cost orders are made and a claim is made against the Legal Aid Fund by a supplier. The current position in such cases will remain exactly the same when we implement the relevant provisions of this Bill.
Indeed, we recognise that market rate costs payments where interparty costs are ordered represent an important source of income for legal aid providers, and nothing in the Bill is intended to interfere with the present position in respect of such payments. Specifically, legal-aid-only costs will continue to be payable to providers where a supplier recovers interparty costs, to the same extent as at present. So the existing position, including in partial cost order cases, will remain. I also confirm that, in the specific context of interparty costs, we intend to exercise the power in Clause 24 of the Bill so that it is clear that legal-aid-only costs, including in partial cost order cases, remain payable to suppliers. This will make the position clearer than it is at present, given that the entitlement to payment for legal-aid-only costs currently appears only in the LSC contract. I hope that with those assurances, the noble Lord will withdraw this amendment.
Lord Beecham
My Lords, that certainly sounds extremely reassuring. I will read what the Minister has said with some care—not that I doubt him, of course—because on the face of it, if the clause does not change the previous legislation, I am not quite sure why we have it at all. However, accepting his assurances and good will, and in a spirit of relief at 10.45 pm, I beg leave to withdraw the amendment.