Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Beecham Excerpts

Tuesday 10th January 2012 Lords Chamber

Moved by

[Lord Beecham]

7: Clause 2, page 2, line 20, at end insert—
“( ) Before making arrangements under subsection (2)(c), a draft order with the proposed arrangements must be laid before, and approved by an affirmative resolution of, each House of Parliament.”

[Lord Beecham]

My Lords, after the nerve-tingling excitement of the debate on the previous amendment, we come to arguably more prosaic matters. The amendment deals with the provision in Clause 2 under which the Lord Chancellor would have the power to, as the Bill quaintly puts it,

“make such arrangements as the Lord Chancellor considers appropriate for the purposes of carrying out the Lord Chancellor’s functions under this Part”,

which is perhaps a little otiose. The crucial point arises under subsection (2), under which he may make arrangements for a variety of things:

“making grants or loans to enable persons to provide services or facilitate the provision of services … making grants or loans to individuals to enable them to obtain services, and … establishing and maintaining a body to provide services or facilitate the provision of services”.

The amendment would require any such arrangements to be made by way of an order that would have to be approved by an affirmative resolution of each House. That is consistent with the creation of what presumably, or potentially, would be a new quango—something that the Government have been at pains to dismantle wherever they have spotted one hitherto—and with the other provisions in Clause 2(2). It is necessary for there to be adequate parliamentary scrutiny of any such arrangements.

I confess to not having understood quite what the Government’s intentions are in respect of this clause; the Explanatory Notes do not live up to their title. Perhaps the Minister could sketch for us what in fact the Government have in mind regarding this provision. Do they propose to set up a quasi-Legal Services Commission? Will they set up some kind of Tesco law outfit that would be contracted to provide services more widely and perhaps on a less commercial basis?

What kinds of loans or grants are envisaged to individuals to enable them to obtain services? This is something of a novel concept—funding litigation by way of a loan from an organisation set up, presumably, by the Government. What sort of body is envisaged to provide services or facilitate their provision, given that the LSC disappears? None of this is apparent in the Bill or, as far as I can tell, in the Explanatory Notes, and it would be helpful if the Minister could enlighten the Committee about the ultimate intention.

Under Clause 2(5) there is a provision that allows the Lord Chancellor to make different arrangements under this clause—relating both to the matters to which I have referred and to remuneration, which we will come on to in a subsequent amendment—with regard to different areas in England and Wales, different descriptions of case and different classes of person. Again, it would be helpful to know what the Government have in mind. Would there be a different system of grants and loans according to different areas of law or in different parts of the country? What are the Government’s intentions, and how would they go about developing them? What consultations do they propose to hold, or indeed have they held, about this? In particular, what would be the impact not only on the legal profession but on the voluntary sector, law centres, Citizens Advice and other bodies? As I say, none of this is apparent in the Bill, hence this is something of a probing amendment. In any event, if the Government are to proceed along the lines sketchily laid out here, parliamentary approval for their proposals should be a prerequisite, and that is ultimately what the amendment comes down to.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, Amendment 7 seeks to require a novel situation whereby specific arrangements that the Lord Chancellor may make under Clause 2(2)(c) would have to be included in an order subject to the affirmative resolution procedure. I believe that it will be beneficial to expand on the purpose of the provisions in question before addressing the amendment itself.

The specific provision is designed to provide the Lord Chancellor with the powers to create a body to provide or facilitate the provision of services. In practice, this provision is included in the Bill to allow the Lord Chancellor to continue to provide services through the Public Defender Service. The PDS is a body established under the auspices of the Legal Services Commission that directly employs lawyers to provide legally aided criminal defence services, alongside solicitors’ firms in private practice that are contracted with by the LSC. This dual model tends to be used in areas where there have historically been issues with the level of availability of supply. The PDS must necessarily be distinct from the Lord Chancellor, given its role of defending individuals accused by the state of committing criminal offences.

Let me turn now to the proposed amendment. It appears to me a very novel suggestion that the legislative processes of these Houses would be used to consider arrangements that are not intended as legislative instruments but would nevertheless become so were the amendment to be adopted. The specific arrangements envisaged under this proposal—the continued provision of the Public Defender Service—do not and should not require parliamentary scrutiny. There is no question of protecting independence. Lawyers employed by the PDS are subject to the same professional obligations and ethical codes as those in private practice, regulated as they are by the Solicitors Regulation Authority. In addition to this, PDS lawyers are also subject to a PDS code of conduct, which is designed to help ensure independence. It is the Government’s intention that all current arrangements should continue under the new framework, including the PDS code of conduct.

This is explicitly dealt with in Clause 28, which provides for a code of conduct to be observed by civil servants and employees of a body established and maintained by the Lord Chancellor, the latter dealing with those individuals employed as part of the PDS. The PDS has operated unencumbered by interference since it was first deployed in 2001, and there is no basis for assuming that its continued operation should be in any way different under the revised framework before the Committee. I stress that this power will be used in law to re-establish the PDS under the new framework. However, in practice nothing will change: the PDS will operate in exactly the same manner and in the same locations, and it is not appropriate to use parliamentary time to endorse what is already in existence. Given those assurances, I hope that the noble Lord will withdraw his amendment. There is no need to put powers in the Bill to create the LSC’s replacement. This is a departmental administrative arrangement and the legal aid agency will be an executive agency of the MoJ.

[Lord Beecham]

My Lords, I am tempted to apologise to the Minister for not having the telepathic powers that would have enabled me to understand what the clause is about. It does not specifically refer to the Public Defender Service. Of course I accept the noble Lord’s explanation but it would be helpful if the Government were to amend the clause before we get to Report to make it clear that it is the Public Defender Service that is referred to. On the face of it, it could be any kind of arrangement that is being made, so, if I may say respectfully, it would be helpful for that course to be taken.

[Lord McNally]

If it would be helpful, I will write to the noble Lord to clarify and I will consult with colleagues on the point that he makes.

[Lord Beecham]

In the circumstances, I beg leave to withdraw the amendment.

Amendment 7 withdrawn.

Moved by

[Lord Beecham]

8: Clause 2, page 2, line 23, at end insert—
“( ) Before making regulations relating to the payment of remuneration to barristers and solicitors in accordance with subsection (3), the Lord Chancellor shall consult—
(a) the Bar Council;(b) the Law Society of England and Wales;(c) the Institute of Legal Executives; and(d) organisations representing the legal advice movement.( ) Where the Lord Chancellor makes regulations in accordance with subsection (3), he or she shall have regard to the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies.”

[Lord Beecham]

My Lords, the noble Lord may say that this amendment relates only to the Public Defender Service, in which case I suspect that my speech will be rather shorter than it might otherwise have been. The amendment refers to Clause 2(4), which refers to,

“arrangements for the purposes of this Part”—

not just this clause—

“that provide for a court, tribunal or other person to assess remuneration payable by the Lord Chancellor, the court, tribunal or other person … in accordance with the arrangements”.

The previous subsection provides that the Lord Chancellor may make such provision for remuneration by regulations. I apprehend that this will not refer to the Public Defender Service. If that is the case, I will proceed to outline the position that we wish to take.

On the assumption that this amendment is of general application, which appears to be the position, the amendment would require the Lord Chancellor to consult the Bar Council and the Law Society, which is the present position under the Access to Justice Act. In addition, it is suggested that consultation should take place with the Institute of Legal Executives, which is now a recognised and substantial body of contributors to the legal system, and with organisations that represent the legal advice movement—law centres and the like. These have, with cross-party support since their inception, played a growing and important role, again supplying legal aid and advice.

As we heard in the context of the debate on today’s first amendment—on expert witnesses—there is a potential issue about remuneration, which is linked to the possibility of maintaining an adequate supply of lawyers in this case, and to providing choice for consumers. Therefore, the amendment would make it necessary for consultation to take place, whereas the Government’s view is that it is not necessary to have that in legislation. They have indicated that they will continue to consult the Bar Council and the Law Society. We would say that consultation needs to be wider and that it needs to be statutory, rather than simply rely on the good will of the Government of the day. Consequently, any regulations that then come forward would also require approval.

Amendment 9 would make it a requirement—rather than, as matters presently stand, discretionary—for the Lord Chancellor to set and monitor standards of service in legal services. That seems a sensible provision, which would reinforce the need to ensure that there is access to advice that meets a standard. At present, under the legal aid scheme, certain quality standards have to be passed by practitioners and that should remain the case. Amendment 10 effectively reinforces that provision, again making it necessary for the Lord Chancellor or other persons to set and monitor standards of service under the Bill.

Amendment 11 refers to the need to consult the relevant organisations—the Law Society, the Bar Council and the Institute of Legal Executives—in devising and maintaining a system of accreditation for the purpose of providing legal services.

There is a question raised by Amendment 12, which as it stands would remove Clauses 3(4) and (5), which provide for the Lord Chancellor to charge for accreditation. This is designed to elicit a response from the Minister as to what the Government’s intentions are in this respect. It may be that charging for accreditation would act as a deterrent in certain areas, particularly perhaps in the voluntary sector and for law centres that would seek accreditation.

Amendment 104 again requires the Lord Chancellor to carry out consultation before making regulations in relation to criminal proceedings. He should consult with the Lord Chief Justice, the Director of Public Prosecutions and, again, the three legal bodies. There is a concern that the current pattern of reductions in support for organisations will impact on market sustainability, to use a phrase of the chief executive of the Legal Services Commission. People consider there is a danger that organisations will not survive, particularly in the voluntary sector. That is something on which the Government need to reflect when they are making regulations to secure the delivery of advice and support services.

The Access to Justice Act provides:

“When making any remuneration order the [Lord Chancellor] shall have regard to— … (a) the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies, … (b) the cost to public funds, and … (c) the need to secure value for money”.

That measure has commanded cross-party support for well over a decade. The thrust of these amendments is to ensure that that remains the case and to involve those who will be engaged in providing that legal advice and assistance in the regulations that the Lord Chancellor will be required to make regarding remuneration, the supply side of the service, as it were, and maintaining the quality of the service. I hope the Minister accepts that these amendments are designed to reinforce and support the system which the Bill seeks to create. I beg to move.

[Lord McNally]

My Lords, I note that the noble Lord spoke not only to Amendment 8 but to Amendments 9, 10, 11, 12 and 104. I hope that that was intentional. I am happy to reply to both groups. According to my batting order they were supposed to be spoken to separately. However, the noble Lord spoke to them so well that I am happy to reply to both groups. If anybody wants to speak to the group beginning with Amendment 9, I will sit down while they do so; otherwise, I will reply to both groups at the same time. I commend the noble Lord, Lord Beecham, on his splendid—

[Lord Beecham]

Inadvertence.

[Lord McNally]

Perhaps he would like to move the next four groups formally as well.

Amendment 8 seeks to achieve two things. First, it provides for the inclusion of provisions akin to those in Sections 25(2) and (3) of the Access to Justice Act in relation to the matters the Lord Chancellor must take into account when setting remuneration rates for barristers and solicitors in regulations under Clause 2(3), specifically,

“the need to secure the provision of services of the description to which the order relates by a sufficient number of competent persons and bodies”.

I realise that a number of the amendments that the Opposition have put forward have harked backed to the Access to Justice Act.

The second effect of the amendment would be to create a statutory requirement to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors. I recognise that the Delegated Powers and Regulatory Reform Committee drew the attention of the House to Clause 2(3) in light of the lack of a provision in the Bill equivalent to Sections 25(2) and (3) of the Access to Justice Act 1999. However, in our view Amendment 8 is unnecessary. In respect of factors the Lord Chancellor must take into account when making regulations setting rates of remuneration for barristers and solicitors, the matter specified in the amendment is naturally a matter that falls to be taken into account, along with other relevant considerations, when deciding how to set those remuneration rates, and it is therefore unnecessary to include a reference to them on the face of the Bill. It is also unhelpful specifically to list these factors when there will be a range of other factors that, in the particular circumstances prevailing at the time, also properly fall to be considered but may appear excluded, or be given a lesser status, by the proposed provision. I am sure that noble Lords will agree that, when making regulations setting remuneration rates, the Lord Chancellor should properly have regard to all the relevant considerations and give them appropriate weight and that the Bill should not imply otherwise.

In respect of the proposed duty to consult with the Bar Council, the Law Society, the Institute of Legal Executives and organisations representing the legal advice movement before making regulations under Clause 2(3) setting remuneration rates for barristers and solicitors, we also consider this to be unnecessary. We will continue to engage the Bar Council, the Law Society and other representative bodies on remuneration matters wherever it is appropriate and constructive to do so. The absence of a statutory duty does not preclude this. With that assurance, I hope that the noble Lord will withdraw the amendment.

--- Later in debate ---

[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.

[Lord Beecham]

I am glad to have given the Minister the opportunity to buy one group of amendments and get another free. I am sorry that he has not accepted the offer. He twice used the pregnant phrase that this does not “preclude” consultation. If I may say so, that is a very negative way of looking at the responsibilities of the Lord Chancellor and a rather worrying phrase. It is not a question of not precluding; the Bill should lay down what is expected of the Lord Chancellor and what he should do.

The Minister has repeatedly objected to the substitution of “must” for “may” in my amendments. The word “must” is in Clause 1, which states:

“The Lord Chancellor must secure that legal aid is made available in accordance with this Part”.

In some ways, this is a mirror image of another debate that I am involved in, with other Members of your Lordships' House, on the health Bill. Many of us, including some on the government Benches, have been trying to secure that the Secretary of State for Health has the duty to provide health services. That aspiration is one which, in respect of legal services and legal aid as defined in the Bill, is embodied in the government's wording.

Given that, it is not enough for the Minister to say that the LSC has those powers now. After all, the LSC effectively disappears. The Lord Chancellor becomes the authoritative body for the provision of legal services. It seems to me sensible and in fact desirable to protect the Lord Chancellor from succumbing to the temptation not to consult properly or to do things in perhaps a rather rushed or narrow way either of his own volition or at the behest of the Treasury or other organs of government, looking, for example, to make savings very quickly and perhaps very radically. I dare say that that may not be the intention of the present Lord Chancellor but it would be better to protect him from the possibility of judicial review, to which the noble Lord, Lord Carlile, referred, in the first place by providing a clear responsibility.

I was rather worried by the Minister’s reference to market forces. This is, I suppose, a reference to the sort of Tesco law that we are beginning to see happening. It rather worries me that, particularly in relation to Amendment 104, which deals with the criminal justice aspect, market forces might be deemed to be fit and proper effectively to run the legal aid service, whereas in the particularly important area of public policy and justice there is no requirement to consult such responsible bodies and persons as the Lord Chief Justice, the Director of Public Prosecutions and the three legal professions. I do not think it is good enough just to say that any Lord Chancellor would do this. One would hope that that would be the case but I am not sanguine enough to accept that it is proper in dealing with these matters to leave it to the potential good will of a future Lord Chancellor.

I would hope that the Minister would recognise that there ought to be a duty here. It is something that, in the absence of any movement before Report, we will have to come back to, as we might with regard to some of the other aspects to which he referred—in particular, the issue of charging for accreditation. I can see some case for making charges but I can also see a strong case in the realm of the voluntary sector for a different scheme. I give way to the noble Lord.

[Lord Phillips of Sudbury]

Does the noble Lord not take some solace from the view expressed by my noble friend Lord Carlile and the noble Baroness on the Cross Benches that a Minister who ignored the obvious consultees would be susceptible to an effective judicial review? Is that not the best assurance that the noble Lord needs in order to rely on the present wording?

--- Later in debate ---

[Lord Beecham]

It strikes me that it would appeal to members of the Bar because it could be an endless source of work for them, but I do not think that that is the best way to make law—that is, leaving judicial review as an option and expecting that to act as a deterrent. Surely it is much better to have the duties clearly outlined in the Bill and placed on the person who has the statutory responsibility to secure the availability of legal aid and advice. It seems to me concomitant with that principal responsibility. I beg leave to withdraw the amendment at this stage but I may have to return to it at a later stage.

Amendment 8 withdrawn.

--- Later in debate ---

[Baroness Butler-Sloss]

I am an honorary member of Resolution. I would like the Committee to know that Resolution has extremely high standards in ensuring, if possible, that its clients settle every case which the lawyers deal with. It has a very impressive protocol on how each member of Resolution should behave in family law cases. I entirely agree with the noble Lord, Lord Thomas of Gresford, about the importance of collaborative law. As I understand it, it is the brainchild of Resolution, and Resolution is doing it with a view not to making a lot of money from it but to doing something to help families who otherwise will come before the courts. It is an admirable scheme run by an admirable organisation.

[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 McNally]

My Lords, we are approaching the witching hour, as the opposition Whip moves stealthily to consult the government Whip. I do not want to give any clues as to whether this is going-home time, but if it is I am very grateful to my noble friend for ending our evening on a matter on which there is some hope of collaboration. I do not want to raise his expectations too much, but I agree with the noble Lord, Lord Beecham, that this concept, which is new to many of us, seems to have great potential. Again quoting from the noble Lord, it appears to be adaptable and flexible. It now has the not inconsiderable badge of approval from the noble and learned Baroness, Lady Butler-Sloss, as an admirable scheme run by an admirable organisation. Like book reviews, I am sure that Resolution will have that as a strap-line.

How does this fit in with what the Government are trying to do? In response to the points made by the noble Lords, Lord Beecham and Lord Howarth, I should say that we have never seen mediation as a cure-all. The Lord Chancellor has made it very clear that he wants to wean us away from almost automatic litigation at the taxpayers’ expense, which is one of the attractions of mediation. The collaborative law concept certainly has its attractions.

As the noble Lord, Lord Beecham, pointed out when he quoted from Resolution, the MoJ has said that the Bill as it stands does not exclude the possibility of funding collaborative law in the future. Clause 7 refers to funding,

“mediation and other forms of dispute resolution”.

The amendments are accordingly unnecessary in so far as they set out to make it possible, as opposed to requiring, for funding to be made available for collaborative law. However, given the reduction in the budget that we need to make and the additional costs of involving two lawyers, as would be required for collaborative law when compared with mediation, we cannot commit to the additional resources required to fund collaborative law at this stage. We would not, however, rule it out at some time in the future.

I should like to make one other point. The Government understand that some mediation cases are complex and need additional legal support. We will be providing further legal advice in such family cases where an agreement reached through mediation needs to be turned into a court order, with an independent fee set at this level of service at £200. This is in addition to the £150 fee for legal advice accompanying mediation as originally proposed, and taken together this means that there will be considerable scope for publicly funded legal advice to accompany mediation, especially in more complex cases.

As I have said, I cannot take out the chequebook this evening so far as collaborative law is concerned, but I assure my noble friend that by putting this on the agenda, as it were, there is no doubt that it will play a part in future. Again, as the noble Lord, Lord Beecham, has said and as I have said a number of times from this Dispatch Box, legal services are on the move and I can very well see that the concept of collaborative law or collaborative resolution, if my noble friend Lord Phillips has his way, may well play a part in the future. At this time of night, however, I ask my noble friend to withdraw his amendment.

[Lord Beecham]

My Lords, perhaps the Minister might suggest an experiment with collaborative resolution. If the Prime Minister and the Deputy Prime Minister underwent the process, it might help the noble Lord to get the resources needed to extend the principle more widely.

[Lord McNally]

That is a merry jest with which to end the evening.