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Community Legal Service


12th July 2005

Today we are considering three separate measures: The Community Legal Services (Scope) Regulations 2005; the Community Legal Services (Cost Protection) (Amendment) Regulations 2005; and a revised Funding Code.

1. Introduction

Today we are considering three separate measures: The Community Legal Services (Scope) Regulations 2005; the Community Legal Services (Cost Protection) (Amendment) Regulations 2005; and a revised Funding Code. I will not take up the Committee's time to explain the changes that would effected by these measures, as the revised Funding Code alone comprises nearly 100 pages of complex and technical rules. Indeed, I believe it would take more than our allotted one and a half hours to consider each of the specific reforms and their practical implications.

In essence, they introduce some of the reforms outlined in the DCA's response to the LSC's consultation paper "A New Focus for Civil Legal Aid" of July 2004. The thinking behind that paper was to discourage unnecessary litigation, encourage settlement and save costs. While these are admirable aims, we believe that the reforms under review today run the risk of causing some much less attractive consequences.

First, they may restrict the number of people being helped through the legal aid system. This runs contrary to the Lord Chancellor's assurances in his recent statement on "A fairer deal for legal aid" that "The legal aid system will be fair and effective, providing access to justice for all who need it ". Beneath the Government's grand promises of "fairness, decency and opportunity for all", it is actually reducing the scope and eligibility of legal aid and so limiting its cover by stealth. This is symptomatic of this Government's and LSC's general shift from a legal aid system for "those of slender means " to those who are socially excluded . Its ambit is shrinking without sufficient scrutiny or public awareness.

Secondly, the proposals outlined in A New Focus for Civil Legal Aid", including many of those under consideration today, fail to take account of the fact that Alternative Dispute Resolution is not always the most appropriate and cost efficient solution to legal conflicts. ADR does not provide certain remuneration for professionals and cost savings are not assured. Indeed, hidden cost implications arise for other areas of public purse. For example, legal aid funds could be displaced to the ombudsman or other complaints procedures and the use of CFA would cause higher success fees or insurance premiums for public authorities. It is possible that the lack of detailed costing in support of many sweeping proposals could have serious repercussions in the future.

Although, generally, courts should be the place of last resort, it is crucial that sufficient alternatives are in place and that litigation is available when required. It is a myth that most people will push for litigation regardless of cost. I know of few people who would want to go through the trauma of litigation without good cause. We have great concern that these proposals could put disproportionate and unreasonable pressure on poorer people to use ADR approaches instead of litigation. This would create a two-tier justice system, where the courts, and the remedies they offer, become the preserve of the rich.

Given the wide sweeping effects of the reforms under consideration today, we believe that this statutory instrument is an inappropriate format from which to debate the issues at stake. It allows for insufficient parliamentary scrutiny and no opportunity whatsoever to table amendments. As such, the Conservative Opposition will not be able to support this SI. However, I do appreciate my duty to question what has been put in front of me, notwithstanding our foreboding. I will consider the principal changes under review. I hope the Committee will appreciate that we do not have sufficient time to consider each of the reforms brought about by these measures.

2. Community Legal Service (Scope) Regulations 2005

First, I will consider the Community Legal Service (Scope) Regulations 2005. It brings restraint orders within the scope of the CLS, reflecting the regime introduced by the Proceeds of Crime Act 2002. However, rather than broadening the scope, the Scope Regulations actually reduce the scope as they remove from scope all personal injury, death and damage to property. This goes further than "negligently caused personal injury, death and damage to property" which is currently excluded but the actual extent of the exclusion is unclear. Responses to the LSC consultation asked that certain cases should be exempt and remain in scope - these included sexual or violent abuse, assault and Criminal Injuries Compensation Authority claims, clinical negligence, medical treatment given without consent, abuse by health professionals and educational negligence.

The Government responded by stating that, in addition to removing personal injury cases from scope, it would add a new Lord Chancellor scope direction authorising Legal Help for Criminal Injuries Compensation Authority claims and to reflect the personal injury change. Can the Minister assure us that this has been done? The Vote Office has provided us with this Lord Chancellor's Direction on the Scope of the Community Legal Service, but it is not dated and its references are not clear. It is hoped that the Minister will elaborate if it is in force; if so, when it came into force; how it will interact with the Scope Regulations; and how it can be amended. Also, it is not clear why only Legal Representation, not Legal Help or Help at Court will be available for proceedings which have a wider public interest. Finally, how will one assess whether an adult is sufficiently "vulnerable" to fall within the exemption at paragraph 8(h) - we are directed to definitions within the Funding Code but no definition for "vulnerable adult" appears in that text.

In short, the Scope Regulations and the Lord Chancellor's Direction seem vague and uncertain which cannot help the smooth functioning of the legal aid system.

3. Community Legal Service (Cost protection) (Amendment) Regulations 2005

The second measure under consideration this afternoon is the Community Legal Service (Cost protection) (Amendment) Regulations 2005. These Regulations exclude family proceedings from the cost protection rules of s11 of the Access to Justice Act 1999. I remind the Committee that s11 provides that a publicly funded party need only pay a reasonable amount where a costs order is awarded against him. Many believe that cost protection may encourage unreasonable litigation, but it is difficult to see why the LSC would award funding to unreasonable litigation. I would also like to remind the Committee that there are already provisions in place to order costs, where possible, in extreme cases and a duty to report when a person acts unreasonably. Therefore, I would be grateful if the Minister could elaborate on which type of cases this proposal is intended to bite.

There is I believe a valid concern that the removal of cost protection would discourage the poor from asserting their rights. I would like to ask the Minister how she has addressed this issue. Indeed, given the cuts in eligibility, it is difficult to imagine how anyone receiving legal aid would be able to pay costs. This is a serious issue as, where powerful cost sanctions are awarded, a person could be made homeless. Quite apart from the immediate hardship for the person involved, this scenario would also place more pressure on the legal aid budget further down the line. Perhaps there are other mechanisms in place which take account of a person's ability to pay and ensure access to justice for those of limited means. I would be grateful if the Minister could explain them to the Committee.

Another feature of the (Cost protection) (Amendment) Regulations is to repeal Regulation 6, which allows for the LSC to pay the difference between Commission-approved insurance payments for Litigation Support and the amount awarded in costs. I am not clear what security a litigant would have in taking out Commission-approved insurance, given that they could end up paying large cost orders in any case. Given the high cost of insurance premiums, this does not seem to be an acceptable alternative to legal aid. However, I am sure that the Minister has a clear explanation for this amendment, and look forward to learning from her how this mechanism would work in practice.

Another anomaly in the CLS (Cost protection) (Amendment) Regulations is the change from one category of "Approved Family Help" to distinct categories of "General Family Help" and "Help with Mediation". This seems to run contrary to the Consultation Paper and the Race and Regulatory Impact Assessment of March 2005, which states that the Government is "restructuring the three Funding Code levels of Service - to replace Legal Help, General Family Help and Help with Mediation to a single devolved level of service called Family Help ". Would it not be simpler to move directly from "Approved Family Help" to "Family Help", instead of this intermediate step backwards? Will this not take more time and money to effect the changes? Perhaps I have misunderstood the Government's intention and would be grateful for an explanation from the Minister.

Finally, the (Cost protection) (Amendment) Regulations remove all references to Support Funding. This is due to the fact that all Support Funding has been abolished through changes in the Funding Code. Se let me now move on to the Code.

4. Funding Code

I was surprised that the Government so readily abolished Litigation Support and Investigative Support, as 50% of the respondents to the LSC's consultation paper found that Support funding provides an important "safety net" and ought to be retained . I would like to ask the Minister what further inquiries she has made of the need for Support Funding and the consequences of its removal. For example, what checks has the Government made into whether complex cases could have been pursued without support funding? Has the Government asked legally aided parties whether or not their cases could have been brought without that support?

50% of respondents stated that Support funding should remain irrespective of take up. Indeed, the fact that Support funding is not required in all cases does not mean that it is not required in any cases. As it is likely that Support funding may be required in some cases, I would also like to ask the Minister if any alternative will be provided. If so, what form will that alternative take and on what criteria will it be offered?

Complaints procedures

Another major reform within the Funding Code is the removal of funding where it is more appropriate to use a complaints procedure for both police complaints and clinical negligence. I remind the Committee that, previously, the referral to complaints procedures only applied to clinical negligence cases under



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