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

My Lords, I am speaking in this afternoon’s debate not because I am a shop steward for the family law Bar, but for two particular reasons. The first is the seriousness of the work. This was brought home to me over 20 years ago, when I had completed what turned out to be my last case in family law. I achieved what I thought was a satisfactory settlement for access to children for my male client, a father of two. Within a very short time, he murdered both children out of revenge against his wife for what had happened in court. If ever a situation could bring home to a lawyer how serious and responsible this kind of work was—for it appeared to be a perfectly ordinary case in a small Welsh town—that was it. My second reason for being here is that last week I happened to be at a social gathering that involved the retirement of a judge who specialises in family work, including, in particular, public law children’s work. I conversed with a lot of judges—circuit judges, a couple of High Court judges and district judges—and their staff at that social gathering, and every single one of them said that the whole process was becoming grindingly more difficult. There were far more litigants in person, which meant that cases were taking longer. The family law Bar appeared to the judges to be demoralised as a result of the very matters that we are debating this afternoon, and the whole picture seemed to those judges to be a very unhappy one. Of course, I accept that both the matters that I have mentioned are merely anecdotal evidence, but I do not believe that there is much better evidence on these issues than anecdotal evidence. We can debate reports by economists until we are blue in the face; we can argue about the basis for their inquiries; we can quarrel about the methodology of their research; and we can certainly, as we have already done, discuss the meaning of their figures. We can also take some very misleading international comparisons, too, but I urge the Minister not even to enter into those because we are dealing with very different types of systems. However, essentially, we are dealing with a practical question here, and I applaud the noble and learned Baroness, Lady Butler-Sloss, for raising it here today. The core of that question is where the welfare of children lies in relation to the provision of fees for legal aid lawyers. Are we here to pay lip service to the welfare of children or to do real service to it? The Government—whose motivation is good—repeatedly pay lip service to the welfare of children, but this order will mean that children will suffer. The Minister is shaking his head but he does so, I am afraid, against the overwhelming body of evidence from those—and I say this with great respect to him—who are possibly rather better informed than he is about what happens in family courts every day of the week. We must bear in mind that we are not talking simply about a few whinging barristers or solicitors who are complaining about the fees; we have heard in this debate from the immediate past president of the Family Division of the High Court, and, remarkably, in connection with this debate, we and the Justice Committee have heard from the current president of the Family Division of the High Court. In my recollection, it is unprecedented for heads of division to enter into a debate of this kind with such energy. I remind the Committee what Sir Mark Potter, the president of the Family Division, said on 2 July this year in his Hershman/Levy Memorial Lecture to the Association of Lawyers for Children. He reported serious delays in cases, partly because of the reduction in CAFCASS and the delay in obtaining reports for courts. He went on to warn Ministers—this was his word—"forcibly" over their plans to reform legal aid funding in children’s cases, and he referred to the cuts as a threat to both efficiency and delay. The use of the word "threat" by the current president of the Family Division is remarkably bold. It would be a remarkably bold statement from any judge but particularly from one—I am sure the noble and learned Baroness will agree with me—who is not naturally given to delving in politics if he can possibly avoid it; he is not a government scientist. He said that if lawyers left this area of work, there would be a rise in the number of people representing themselves and further delays caused by, as he put it, ""inexperienced advocates undertaking more complex work"." He said hearings would be less focused and appeals more likely, and he attacked the Legal Services Commission over what he called a discouraging lack of realism in its apparent determination to disregard the warnings that he and others were giving. I do not want to repeat what has already been said so skilfully and forcefully by the noble and learned Baroness. She has drawn your Lordships’ attention to the reports of the Merits of Statutory Instruments Committee and the Justice Committee. She has already drawn attention to the argument—and it will remain an argument because we are not going to solve it here—about the nature of the figures that have been produced. Ultimately, if this order remains in force in its present form, we will have discriminatory legislation. It will discriminate against women litigants—because many of the litigants in this area are women—and it will discriminate, particularly, against children, as I have already said. It will discriminate strongly against women and children from black minority ethnic groups because some of the least skilled litigants and litigants in person in this area are women who do not have the social skills to be able to represent themselves in court because their customs do not give them social skills. As anyone who has ever tried a case with litigants in person will know, there is nothing worse in a court than a frightened litigant in person appearing before a judge. As the noble and learned Baroness said, it will also discriminate against female barristers because women form the greater proportion of barristers doing this kind of work. They do it far better than most men possibly can because they have an understanding—I hope this is not a sexist expression; if it is, I make no apology for it—of issues that sometimes male lawyers find it difficult to get their heads around. The effectiveness of what the Bar and female advocates have done in this area has amply justified the view that the money has been well spent; compared with many other areas of the law, there have not been galloping increases in legal aid funding. The Baby P case and the greater intervention of local authorities in the welfare of children are not going to result in fewer cases but in far more, as Sir Mark Potter has said. There is nothing in this order that promises that those cases will be dealt with fairly and efficiently; it will be absolutely the contrary.