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Carter Review (Legal Aid)

It is a pleasure to take part in the debate. I have a registered interest as a non-practising solicitor. Before I was elected to Parliament in 1997, I was a solicitor. As it happens, for 20 years I was mostly a legal aid solicitor working on cases relating to families and children in care. As such, in my first 10 years in Parliament, it was noticeable that other hon. Members spoke about lawyers in derogatory terms. Indeed, I often heard hon. Members say that there were too many lawyers in this place, and they did not mean it as a compliment. It has therefore been heart-warming to hear the recognition and solidarity shown to legal aid lawyers in this debate. I can certainly confirm, from personal experience, that we are—or, in my case, I was—motivated by a deep commitment to our communities and social justice before personal profit and advancement. The people to whom we are showing solidarity are not just lawyers in private practices and solicitors firms, but people in the not-for-profit sector. Indeed, hon. Members have mentioned citizens advice bureaux and law centres. Much of the valuable social justice and social inclusion work in the sector goes on in those settings. The right hon. Member for Berwick-upon-Tweed (Mr. Beith) reminded us at the beginning of the debate that the legal aid system in England and Wales still has something of which we can be proud. We probably still spend more on legal aid per head of population than any other system in the world. The reach of our system is probably as good as anything in the world. All those years after the founding of a legal aid system after the second world war, we still start from a position that has something in which we can take pride. However, we stand on a precipice where decisions may be made that would throw away that pre-eminent position. Who would want to be responsible for making such a decision? Not I, and hopefully not this Minister. We are all trying to help her to avoid such a mistake. The debate has been helpful in reminding us that we are debating two possible developments in the future funding of legal aid. The longer-term one, although it is not so far away, is the Carter proposal, red in tooth and claw, of competitive tendering to decide who delivers legal aid services. That is untried and untested. It cries out for piloting first, so I add my voice to those who have said that it should be piloted. The right hon. Gentleman reminded us about the transitional system that might get us from where we are to that arrangement. The crude fixed fees that are being proposed are in danger of causing great damage. There might have been reactionary forces in the legal profession who wanted this all to go away and said, ““Leave it as it is. It is not broken, so do not try to fix it. It is okay.”” All those voices have long since ebbed and died. When preparing for this debate, it was instructive to see the briefings from the Bar Council and the Law Society about how they have recognised the need for change. They have put forward positive proposals that meet their members’ concern for certainty in respect of an amount of money from which they can make a living, and the Department’s concern for certainty in respect of the outcome of its expenditure. That all relates to a system of graduated fees. We ought to consider more closely replacing the fixed fees that are being proposed with the graduated-fee scheme around which everybody has eventually coalesced. What will the consequences be should we get this wrong? The Access to Justice Alliance, which is a deep and broad alliance of all those with a real interest in this area, comprising many people who are friendly towards and supportive of the Government and want them to make the right decision, reminds us that the regulatory impact assessment points out that the effects of standard fixed fees will be most acutely felt in London and by the not-for-profit providers. In addition to those, the areas that can expect the biggest adverse effects are Reading, Cambridge and Bristol. My hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) referred to the negative impact on black and minority ethnic communities. In that regard, the areas that can expect the most significant detriment are London, Birmingham, Leeds, Manchester, Reading and Cambridge. We are not talking about a narrow danger—it is widespread and will be deeply felt. I also want to examine a couple of areas relating to the complexity of law. The present proposals for fixed fees run the risk of undermining the delicate balance involving those lawyers who are committed to carrying out the work. My experience tells me that the first such area is child care proceedings. That is a concern for the Minister because of the increasing costs of individual cases; the unit cost has risen. Nevertheless, if we do not have the commitment of the lawyers who do the careful work required in those cases and if we are not careful, people will be compelled by the fees that they will receive to cut corners, reduce the amount of work that they do or leave the area altogether and thus leave too few lawyers who are able to do that work. For similar reasons, great detriment is likely to be caused in mental health law, where cases require patient, detailed work with clients and incredible amounts of investigation to get the outcome right. My hon. Friend the Member for Hackney, North and Stoke Newington has mentioned the risk to lawyers’ black and minority ethnic clients. I want also to point out the danger to lawyers’ disabled clients. They are a specific group who require attention and detailed consideration, and they would not get that under the fixed-fee proposals. One hon. Member mentioned rural communities as a whole, and I want to underline that point. The future vision might be one of large-volume suppliers of legal services, but there is no way that the practices that exist in rural areas can be those large-volume suppliers. Practices will go out of business and people will have to travel a long way to find a lawyer willing to help them. All those comments come from my background, my taking part in debates such as this and my correspondence with the former Minister responsible for this area, but I want to mention constituency pressures. My citizens advice bureau gives astonishingly good value. It is a shoestring organisation that delivers high-quality law in many social law areas of practice. It is already warning me that it faces stopping some of its activities because the fixed fees would not cover them. That is a worrying fact for me to face. Cathie Halliday, a lawyer who carries out legal aid in my area, has had the gumption to collect a public petition of objections to the changes and led a day of action outside court, in which lots of legal aid lawyers participated. Such activities on the part of lawyers in my constituency are unheard of. A good friend and long-standing colleague when I was a lawyer, Neil Robinson, is now an experienced family lawyer and sometimes a district judge. He is particularly strong on mediation, and he warns me of the dangers for mediation cases if the fixed fees go ahead as planned, especially in respect of the not-for-profit sector as opposed to private lawyers. He is writing an article for the Family Law Journal this month expressing his fears about what might happen in mediation cases. Bearing in mind what my hon. Friend the Member for City of York (Hugh Bayley) said about the National Audit Office report that points out the financial benefits to the legal aid system of encouraging more take-up of mediation, and the Government’s stated stance of supporting more mediation, it seems ridiculous to take the risk of mediation going backwards under these proposals. We should not get fixated on these schemes. Many other solutions to the problems of pressures on the legal aid system exist. One is increased use of mediation. We must get to grips with the high-cost cases and understand the reasons why the child care cases are becoming so expensive. We must examine the way experts are instructed and used and the other disbursements that are increasingly coming under a legal aid heading despite their not really sitting there. We must also examine this place’s responsibility for creating new laws, for making the law that courts have to implement more complex, and for creating delays in the court system, which several hon. Members have mentioned. My hon. Friend the Member for Southampton, Test (Dr. Whitehead) sought to make his point by comparison with the waste sector. I should like to make my point by comparison with national health service dentistry, which was a good scheme until the early 1990s, when a disastrous contract drove many state-funded dentists away from the system. When the impact on the public was realised, a new Government tried to bring those dentists back with a new contract, but they had either left the system completely or had become comfortable with the ways in which they had become ensconced, and they did not want to come back to help us out with national health service dentistry. I fear that exactly the same situation might occur: that we will drive away lots of legal aid lawyers and find out that there is a disaster in terms of services to the public, and when we want the lawyers to come back and we throw more money at the problem, they may not want to come back. Plenty of alarm bells are ringing and I hope that the Minister will listen to them.