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

The Justice Committee. It set out a list of issues; there may be many more, but this is what it assumes. There is a vast area of new jurisprudence and obligations arising out of the European Convention on Human Rights; there is an ever-increasing volume of papers in children’s proceedings arising from the ECHR; there are new forms of documentary evidence and greater judicial expectations; the use of e-mail includes the expectations of clients for contact and explanation; there is an ever-increasing amount of case law, practice directions, and legislative and other initiatives; and there is an increased focus on the care plan in public law proceedings, rather than on the issue as to whether or not to make a care order. Then there are advances and ongoing research in medical science, especially related to injuries, and in the understanding of child abuse. I had some experience of that in a case in July. I was dealing with the criminal end of it but the whole of the family proceedings were before me. The case had lasted about six days, with a vast amount of documentation, exhibits and medical evidence, with experts disagreeing on either side, and with the judge having to come to a conclusion and counsel on both sides doing their best to cope with difficult medical issues. Then there are diversity issues and a matter to which my noble friend Lord Carlile referred—the problems that many litigants have with English, it being their second language. There are also litigants with learning difficulties and so on. All these problems have added up to cause great difficulty in the family courts. It is ironic that at the moment, when public concern about the protection of children is rising as a result of the Baby P case and other cases, the Government step forward and cut the provision for legal aid in this sensitive area. There are times when one appreciates the huge gap that has opened up between government and the reality of what goes on in the courts. I do not know how many of those behind the Minister today have practised in the courts or have been in the courts and heard cases, but it seems that much of the legislation that comes forward from the Government is not based on proper evidence. The Justice Committee referred in its report to the complete lack of adequate research on this matter—for example, research into the impact of the provisions that are being put forward on the suppliers of legal services. On other occasions, the Minister has said that the gaps will be filled by in-house advocates, the provision of alternative business initiatives or other things that do not exist at the moment. An order was introduced in July and put into effect in August 2009 in the context of a system of legal services that does not exist. If the Minister goes back to what he has done in the past and relies on this pattern of supply—on the future that he foresees—he will be doing a great disservice to the seriousness of the issue. The family service is for vulnerable children and families and, as the current economic climate gets worse, relationships crumble, marriages break up, children suffer, violence enters the home and the problems that come before the courts get more difficult and complex. All are agreed that legal aid expenditure must be controlled, but the people who appear in court are not there for the money but because they are dedicated, whether they are barristers, solicitors or advocates. In 2006, the noble Lord, Lord Carter of Coles, wanted to shift legal aid from piece work to block contracts and from paying for time to paying for outcomes. What has not been appreciated is that to get to the nirvana sought by the noble Lord, Lord Carter, takes a lot of detailed, complex steps and care. It is that care, investigation and research that the Government have not done. Our view is that the proposals before us in this order will simply cause future problems. They leave too many vulnerable people without help. Families will run into greater difficulties financially and otherwise, and the state will be torn between removing children and saving money. Ultimately, the lack of properly considered ancillary relief will push broken families into the path of destitution. The other argument advanced by the Government is that it is all swings and roundabouts. "Yes", they say, "we are reducing the provision of legal aid by £13.5 million, but we are paying people more for less". In other words, they are paying more for the less complex cases and taking money away from the more complex to pay for the first group. However, that ignores the basic principle of how the legal profession works, has always worked and, one hopes, will always work—namely, that more experienced practitioners will do the more difficult cases. That is the point made very strongly by the noble and learned Baroness, Lady Butler-Sloss, who is to be heartily congratulated for bringing this matter forward. You cannot expect experienced practitioners to go into the smallest cases to get more money. In Hong Kong, it was a joke that when you joined the Hong Kong Bar in the criminal field, in the first six months you would find yourself either prosecuting or defending in a murder case. As you made your name and became better known, you would go down the courts and in the end appear in the magistrates’ court for huge fees, paid by people with enormous fortunes who were being done for speeding. You could see how the profession in Hong Kong was being dragged down in that way. Structuring a legal aid system in such a way that the more experienced people are tempted to do the less difficult work is crazy. One hopes that we will hear from the Minister that the Government have something a little better in mind for the future and that they will not pursue the course that they have so inadequately pursued so far.