Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Howarth of Newport Excerpts

Tuesday 10th January 2012 Lords Chamber

[Lord McNally]

No, I recognise a red rag when I see one. I will think about the point that the noble Lord made. I commend him for merging two groupings and ask him to withdraw the amendment.

[Lord Howarth of Newport]

Before my noble friend withdraws his amendment, perhaps I can ask the Minister a question. I am sure that the Committee is grateful to him for the full explanation that he has given in response to the amendments. He has assured the Committee that it is unimaginable that the Lord Chancellor would not consult regularly with bodies representative of those who provide legal services and he has insisted on the importance of due monitoring and accreditation—all processes no doubt designed to uphold standards. Can he give some account of how all those processes that he has said that the Government will undertake assort with something else of which the Lord Chancellor has made much? He said in his article in the Guardian on 20 December:

“This year we've begun deregulation of the legal sector, a change comparable in its possible impact to the Big Bang in the City in the 1980s”.

That suggests that there will be some very different procedures and that the relationship between the Ministry of Justice and the legal profession could become very different indeed.

In the context of the ministry's zealous desire to deliver substantial savings in public spending and its desire to break open some of the traditional structures and ways of carrying on, I wonder how the consultation, monitoring and continuing assurance of standards are to be reconciled with the exciting and radical new approaches that the ministry is developing.

[Lord McNally]

If I may say so, that is an extremely helpful intervention. One reason why my right honourable friend is reluctant to have these things battened down is that, as I have said from this Dispatch Box, the provision of legal services and the structures of the legal profession will be changed not by any radical zeal from the Ministry of Justice but by market forces and changes that are happening in our society. Much of what we have been talking about since the dinner break has concerned the machinery to be put in place, which very much replicates machinery already there but anticipates a more fluid situation in the legal profession.

That is why specifying named organisations and people could be dangerous. What must be clear is that the Lord Chancellor has those responsibilities, including the overriding one of protecting justice. I also invite the House to have some common sense: any Lord Chancellor or Secretary of State for Justice who tried to ignore or ride roughshod over the various bodies involved would soon come to grief.

I agree with the comment of the noble Lord, Lord Bach: successive Ministers will find that you can consult but you do not always agree. I am sure that there was not total agreement when the previous Government imposed cuts in various fees for parts of the legal profession. That is the nature of things. Any sensible Lord Chancellor would involve and consult those bodies. That makes the amendments unnecessary.

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[Lord Howarth of Newport]

When the Minister replies, will he assist the House by telling us what will be the manifestations of the independence of the director of legal aid casework? For example, will the director produce an annual report to be laid before Parliament or in some other way made accessible to the public? Will he be free to make public comments, publish articles or take part in discussions on the radio or television? How will we know that he is independent? What will be the safeguards against him being dismissed by the Lord Chancellor for reasons of political convenience? We all remember the unhappy circumstances in the mid-1990s when the Home Secretary of the day dismissed the director-general of the Prison Service. This relationship may not be analogous; on the other hand, it would be helpful to be reassured that it could not be analogous.

[Baroness Butler-Sloss]

My Lords, there is a very real difficulty about the whole of Clause 4 because there is nothing in it that suggests that there is any degree of independence in the director, other than in subsection (4). I respectfully agree with all noble Lords who have spoken so far about the absolute necessity of having the word “independence” in a clause of this sort. Without it, the clause does not show that the director would be independent on general issues as opposed to specific cases.

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The noble Lord, Lord Howarth, asked about the possibility of an annual report from the director. We will publish a framework document that sets out the governance and reporting arrangements between the director and the ministry, but, as is the currently the case for the Ministry of Justice and all its agencies, an annual report is published. I therefore ask the noble Lord to await that framework document.

[Lord Howarth of Newport]

Will the annual report say what the directions are? How are the legitimately interested public to know what directions the Lord Chancellor will give the director? Will the Minister tell us how they are to be known and what ground they would cover? What would be the subject matter of the directions?

[Lord McNally]

I think that we will have to await the document, but I will take advice on it. As far as I understand, the directions and guidance on the director’s functions will be published by the Ministry of Justice.

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[Lord Beecham]

My Lords, like the noble Lord, Lord Thomas, I was unaware of collaborative law until I read the briefing from Resolution, but I congratulate the organisation and the noble Lord on bringing these amendments to the Committee today. In the run-up to the Bill, the Government laid great emphasis on the need to find alternative methods of resolving disputes, and particularly on mediation. Mediation can undoubtedly play a role but it is not a straightforward matter. As I said on Second Reading, particularly where there is no equilibrium between the parties—or, to use the other phrase which has been bandied around your Lordships' House for some time, no equality of arms between the parties—mediation is not particularly suitable.

Certainly, those of us who have practised family law have often found in these cases that one party or the other—usually the husband—plays a dominant role in the relationship, particularly when it comes to litigation. All too often in my experience the other party—usually the wife—gives way. Mediation is not an adjudication and it is not a question of reaching an agreement between equals. Even if it were more balanced, it is interesting that the Government’s own projection was that out of 230,000 family cases only an additional 10,000 would be referred for mediation once the system changed as the Bill envisages. In any event, it was clearly not going to extend very much further than it does at the moment.

As the noble Lord has indicated, this proposal is of an entirely different character. In particular, there will be legal advice available—there will be somebody with the parties—and that should redress the balance that is so often missing in mediation and should lead to agreement. In fact, this was something that the previous Government had encouraged. Certainly there was the intention—I am not sure if it was realised—for legal aid to be made available for this on the basis of modest fixed fees being paid to the lawyers involved. As the noble Lord has pointed out, there was no incentive for those lawyers to prolong the case or see that it went further.

I understand from the briefing from Resolution that there has been some discussion—or at least correspondence—with the ministry, which seemed to warm to the idea and indicated that while it was recognised that Schedule 1 to the Bill only refers to family mediation,

“we think that should we wish in future to fund, for example, collaborative law, this could still be achieved. This might, for example, be through the issuing of guidance about what we wish to cover under the term ‘mediation’”.

It is not mediation, as Resolution itself points out, it is something distinct and different and, I suspect from the perspective of many of us, rather better and more useful than mediation.

The amendment deals only with family law. In principle, this process could be taken further—for example to things like employment or perhaps even debt cases, where a less elaborate process than the full litigation which is currently available but which will no longer be available to be supported by legal aid can give way to a process analogous to that which the noble Lord has outlined in the case of family law. There is great potential in this, and it is a better way of reducing the burden on the courts and the costs of public—or indeed private—funding than mediation in many cases.

I hope that the Minister will acknowledge that there is merit, both in the principle and in the amendment that the noble Lord has moved. Perhaps he will consider whether that same principle might be extended to other areas which it is the Government’s intention to remove from scope—not all areas, obviously, but there may well be some—even if it is not possible to identify those at the moment because there would have to be further consultation, and to perhaps bring back an amendment that would allow for additions to what might be brought within the framework of collaborative law, in the same way as subsequent amendments will allow for the addition as opposed to the deletion of items from scope. In that way, we would have a more flexible system that was able to adapt to changing circumstances and a changing ethos within the legal profession and advice services, and build on what appears to be a very successful initiative.

I hope that the Government will agree to take this back and look at it in principle from a supportive standpoint, and that we can end up with something very much along the lines of the noble Lord’s amendment, possibly with the additional factors to which I have referred.

[Lord Howarth of Newport]

My Lords, I understand that the Government are increasing funding for mediation by two-thirds, which is something that the Lord Chancellor has made considerable play of. But are the Government not at risk of putting rather too many eggs into this basket, particularly with the removal of legal aid, which is normally available in family dispute cases? Those on low incomes will be more or less forced into mediation. But you cannot force people to go to mediation. It will not work and, as my noble friend Lord Beecham has said, there is the danger of considerable inequality of power between the two parties whose dispute is being mediated.

I join other noble Lords in asking the Minister to look positively at the suggestion in the amendment tabled by the noble Lord, Lord Thomas of Gresford. It may be useful to provide some funding for collaborative law. It may well be that the legislation should reflect the positive view that the Government take of the availability of this means of resolving disputes in a variety of circumstances.

[Lord Phillips of Sudbury]

My Lords, my name is on this amendment. As persuasively put by my noble friend Lord Thomas of Gresford, it seems to be an unarguable proposition. The only fiddling point I would make about calling it “collaborative law” is that it is not the law that is collaborative but the process. It might be better to call it “collaborative resolution”, but that is a detail. I hope very much that my noble friend will feel that this is an advance.