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Community Legal Service (Funding) (Counsel in Family Proceedings) (Amendment) Order 2009

My Lords, I congratulate the Government on the excellent family and child-based legislation that they have introduced over the past few years. However, the order to which I speak, regrettably, is not in that group. The purpose of my Motion is to bring to the attention of the House criticisms of the Ministry of Justice and of the Legal Services Commission in relation to their process of consultation over decisions on the legally funded fees of family barristers and the impact their decisions will have upon vulnerable families going through the family courts and on the family Bar, particularly on women barristers and especially on BME women who appear for these families under public funding. These criticisms have been supported by the Justice Committee of the House of Commons in its 8th report of July 2009, and by the Merits Committee, of which I am a member, in its 25th report of Session 2008-09. Very shortly, the background is given in paragraph 9 of the Justice Committee’s report, which states: ""Much of the debate about family legal aid reform inevitably revolves around fees and payments, which give the impression that the issues are solely about how much to pay lawyers. It is all too easy to lose sight of the overall purpose of family legal aid which is the provision of a service to families, and particularly to children, to enable them to gain access to justice and to help them navigate effectively through an increasingly complex system. The families, and particularly the children, involved are often confused, emotionally damaged and vulnerable. As Lord Laming stated in his progress report on child protection in the wake of the Baby Peter case: ‘Children are our future. We depend on them growing up to become fulfilled citizens well able to contribute successfully to family life and to the wider society. It is of fundamental importance that the life and future development of each child is given equal importance. Every child needs to be nurtured and protected from harm’. Family legal aid is part of this nurturing and protection and provides a vital service for vulnerable families and children. Their need for this service is as basic as their need for health, education and social services"." In 2008 the Minister said that, ""were it not for the quality of children lawyers that we have at work in this country, then the vital job [they] do would not be done, children and families would not be represented, miscarriages of justice would be the norm, the children themselves would suffer, and the state would end up footing a far greater bill, socially as well as financially, in consequence"." Most of the family Bar belong to the Family Law Bar Association, which has something like 2,300 members, 61 per cent of whom are women. They are at the sharp end of the family justice system. A large percentage of the family Bar does publicly funded work, paid by the family graduated fees scheme since 2001. It is usually called the FGFS, and I shall call it that, although I notice in the Minister’s latest report it has now been changed to the FGF. The Ministry of Justice and the Legal Services Commission produced a consultation paper in June 2008, Reforming the Legal Aid Family Barrister Fee Scheme, which proposed cuts of £13 million to family fees over two years—that is, the FGFS. In December 2008 there was a further consultation paper from the Ministry of Justice and the Legal Services Commission which made various proposals for fixed fees and further average cuts of 20 to 30 per cent and, in more complex cases, up to 50 per cent. The system, according to the Family Law Bar Association, would over-reward simple hearings and under-reward complex cases. There has been great concern among the Bar Council and the FLBA about the reliability and misclassification of underlying data. In February this year, the Minister made a decision on the June 2008 consultation paper that there would be cuts of £13 million over two years to effect public law and private law children cases and financial relief cases, which are called ancillary relief. These cuts are in the statutory instrument about which I ask your Lordships to take note. There had been discussions between the FLBA and the LSC, which accepted that the evidence was based upon anecdotes and not upon research. Therefore, in March 2009, at a late stage, Ernst & Young were instructed by the LSC to investigate and report. In March, the FLBA got an important report, The Work of the Family Bar by Dr Debora Price of the King’s Institute for the Study of Public Policy. It included responses from 1,600 barristers that showed that something like 40 per cent of senior barristers of over 16 years’ call were likely to give up legally funded work or much reduce it. The report demonstrated the serious situation that would exist if these cuts were implemented. There was further discussion with the Minister about the reliability of the underlying data, and he extended the consultation period to April. The real concerns of the Family Law Bar Association were over the late use of economic experts and the failure to inform the stakeholders at a much earlier time. At that time, the report was not expected to be ready until August, which was when the Government would give their decision. The Legal Services Commission said that the economic research of Ernst & Young was not fundamental to the structure of the scheme. However, in giving evidence to the Justice Committee of the other place, it conceded that an assessment of the impact on suppliers of its proposals, part of the Ernst & Young study, was important because a substantial drop in supply would cause a significant problem, and the study was fundamental to the decision on whether the new fees scheme went ahead. When talking about supply, we are talking about the Bar being available to do the cases. The Minister refused an extension of time and the FLBA and other major stakeholders responded to the second consultation paper in April. The Minister then offered to share the conclusions of the Ernst & Young report by the end of June. The decision on the December consultation was to be given on 14 August. As your Lordships will see, the whole thing was very rushed. On 16 June, the Justice Select Committee held a hearing at which evidence was given by a considerable number of people, including me and members of the Legal Services Commission. The Justice Select Committee had been very critical of the Ministry of Justice and the Legal Services Commission. At the end of June, the Ernst & Young report was circulated. By 16 July, the FLBA got out a report by Oxera, which was critical of much of the Ernst & Young report. One particular point it challenged was the finding of excess supply. Oxera suggested that it was much more likely that there would be excess demand in the market rather than excess supply. How Ernst & Young got to excess supply foxes me with what I know about what the Bar is saying about this. On 4 August, the statutory instrument before the Committee was implemented. The Government have asserted that there was a significant rise in the costs of the family graduated fees scheme. Paragraph 7.12 of the Explanatory Memorandum to the statutory instrument states, ""legal aid payments to family barristers have risen unsustainably over the five years from 2003-04 to 2007-08"." That seems a considerable exaggeration. I will give your Lordships the figures in a moment. The Merits Committee questioned the ministry about the statutory instrument and the lack of an impact assessment attached to the Explanatory Memorandum. We were told that family barrister fees were nearly £100 million. The Family Law Bar Association answered the Government figures and stated that the £100 million includes non-FGFS payments, such as payments in the magistrates' courts and other payments that are not to be treated as part of the FGFS. The Government have taken into account the 8 per cent that they over-deducted in 2001 and put back in 2005. In addition, there has been an increase in the volume of cases. For example, everyone knows from the press how many additional cases have come in to the care side of the courts because of Baby Peter. In fact, the FGFS costs have been pretty well controlled, and the Justice Committee quoted from the Legal Services Commission report the following figures. In 2005, the cost was £90.6 million. It was revised by the Ministry of Justice on 26 May 2009 to £88.5 million. For 2006, £94.1 million was revised to £90.4 million, and for 2007, £98.2 million—getting rather close to the £100 million—was revised down to £89.9 million. So these figures, showing an unsustainable increase, may be for overall legal aid, but not for this particular set of barristers’ fees. The Merits Committee put into paragraph 10 of its 25th report a previous Justice Committee report, which had said in 2006, I think: ""More reform is inevitable. However, the consistent message from evidence received on legal aid reform is that the Commission is proceeding at speed with inconsistent data, a weak evidence-base and a poor understanding of the shape, the cost drivers, other motivating factors, and the structure of its supplier market. In addition, as Lord Carter himself emphasised strongly, this fundamental reform of legal aid provision—for 60 years the pride of the justice system in this country—requires the cooperation of those who deliver the services"." The Merits Committee said: ""In the light of these comments the House may wish to seek further information from the MoJ on the robustness of the assumptions that underpin the current Order"—" that is, the one before this Committee— ""both in terms of likely savings and the profession’s willingness to deliver a service under its terms"." That is why I have put this Motion to consider before the Committee. The Justice Committee’s report pointed out, therefore, that there is quite a history to the Legal Services Commission dealing with stakeholders and with controversy over the work commissioned by it. I mention in passing the second Otterburn study. The previous Justice Committee, ""was profoundly troubled by the handling of the Otterburn issue on the part of the LSC"." This Justice Committee said that there were obvious flaws in the evidence of the Legal Services Commission that, ""should have been sorted out in advance of the proposals"," and that the Legal Services Commission had, ""made a substantial rod for its own back"." The Justice Committee also dealt with the implications of the proposals. Perhaps I may give just one example: a case before Mrs Justice Hogg, with four Lever Arch files of 1,200 pages, 29 hours of pre-trial preparation, four days in court and 66 hours as expended by the parents’ advocate. If it had been a private client case, it would have been worth about £9,900. Under the existing legal aid scheme, prior to August of this year, it would have been worth £4,875.25. Under the new legal services scheme, all that work will be worth £1,909. The Justice Committee, ""found the line taken by Lord Bach to be highly unconvincing"." It also set out in considerable detail at paragraph 47 of its report what had been said by my successor as the President of the Family Division and stated that it agreed with it. It then put into its conclusion at paragraph 51 what Sir Mark Potter recently said, which neatly encapsulates the points: ""It is no function of mine as Head of Family Justice, to participate in negotiations between government and the professions as to the terms of their remuneration. However, it emphatically is my concern as Head of Family Justice to bring forcibly to the attention of the government the threat to the efficient working of the system in terms of both efficiency and delay if the LSC proceeds regardless of the warnings of the profession and, in particular if those specialising in children cases abandon or cherry pick publicly funded work. Quite apart from the strain upon family judges and the courts' administration by HMCS, there will be significant further delays in the court process caused by inexperienced advocates undertaking more complex work; longer and less focussed hearings; a higher incidence of litigants in person and a greater likelihood of appeals where cases become derailed because of inadequate representation at first instance"." We are talking of course about members of the public caught up in child and other family cases—some of the most vulnerable people. I do not want to take any more time, so I shall not deal with the effect on the various groups of people, which will be obvious to your Lordships. There is also the impact on the Bench. Many judges at district, circuit and High Court level are appointed from the family Bar. In future, there will be a lack of family practitioners to go on the Bench, which will have an adverse effect on judicial diversity. Almost half the judges of the High Court Family Division are women; it is the only division in which you have that large number, because they are family practitioners. Will they be there in five or 10 years’ time? On 21 October, the Minister gave his decision and consultation response, although that was after the statutory instrument to which I refer. It made some minor improvements in public law work but none in private law or financial cases. The Family Law Bar Association has regretted the lack of further consultation and has very real concerns about the driving away of experienced practitioners. My concerns are about the continued failure of the Ministry of Justice and the Legal Services Commission to get reliable evidence and accurate data before making fundamental changes and to engage in a proper collaborative discussion with stakeholders. They need to improve their current poor relations, which will require a fundamental change of attitude on the part of the Legal Services Commission. I ask the Government to do better and give us an assurance that they would genuinely listen and act on constructive criticism. If they do not, there will be a serious adverse effect on the administration of family justice and on some of the most vulnerable people in our society, mainly children. I apologise to your Lordships for taking so long, but this is a very important matter. I beg I move.