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

My Lords, first, I declare my interest as a practising solicitor and partner in the national commercial law firm, Beachcroft LLP. I have benefited greatly by the debate initiated by the noble and learned Baroness in laying her Motion to take note of the order that came into force as long ago as 4 August. As she pointed out, the order makes changes to the legal aid family barrister fee scheme—the family graduated fee scheme, or FGFS. The justification that the Government have given for these changes, on the surface at least, sounds reasonable. They have increased the basic rate paid to counsel for public law children cases by approximately 17 per cent and reduced and abolished some of the special issue payments made to barristers, making a large saving for the legal aid budget. At least, I might have thought that they sounded reasonable until I heard the speech of the noble and learned Baroness, as well as those of the noble Lords, Lord Lester of Herne Hill and Lord Carlile, and a very persuasive and rather worrying speech from the noble Lord, Lord Thomas of Gresford. I know that on occasions in the past the Minister has had to defend the indefensible and explain the inexplicable, but I think that that will be a test of all those abilities on his part. One effect of the order will be to allow the harmonised fee scheme to take effect from next October, putting in place the same remuneration for barristers and solicitors and, we are told, rewarding case complexity. Currently, solicitors are paid on a different remuneration basis, focused around an hourly rate. We know from correspondence with the Law Society that it is broadly supportive of these proposals, which it sees as a first step towards a harmonised advocacy scheme, levelling out the rates payable to barristers and solicitors for the same work. It is hard to deny the fairness of that, although there is more than one outcome as a result of the changes wrought by this order. It will not surprise the noble Lord—particularly having heard these very telling speeches—that the Bar Council has been somewhat less enthusiastic in its response. The noble Lord may say that it is not possible to please all of the people all of the time, especially when budgets are under strain. However, the Bar Council has raised a number of very salient concerns, which ought to be considered carefully. As the noble and learned Baroness and the noble Lords, Lord Lester of Herne Hill, Lord Carlile and Lord Thomas of Gresford, have now raised some compelling arguments, I can hardly wait to hear the Minister’s response. Of course, we start with the premise of the need to make savings. The noble and learned Baroness stressed that throughout her speech; she acknowledged the importance of making savings, but the figures that she used were fascinating. Can the Minister confirm that the existing payment regime—the FGFS, which came into being in 2001—has resulted in the savings of 5 per cent that it was expected to make, resulting in the Government agreeing to put money back into the scheme in 2005? Can the Minister please tell the Grand Committee in very clear terms what the financial implications of the order are? Does it mean that £2 million per annum is being removed from fees paid to barristers in public law cases? I note, as has the noble and learned Baroness, that the consultation paper published in June 2008 relied on data which had to be revised in a letter from the MoJ in May this year. It showed that the FGFS had largely succeeded in controlling costs. Can the Minister explain why the Government continued with the cuts proposed in the order, even though the underlying rationale had been shown to be mistaken? There are, of course, quite legitimate reasons to seek to trim government expenditure, but it also useful, particularly for noble Lords, to have them properly justified. The noble and learned Baroness has asked the Government to consider the effect of these cuts in the real world. I found very compelling some of the cases which have been instanced in this, sadly all too short, debate. Family legal aid is, as I think all noble Lords would agree, a very sensitive area. The service is indispensable for families and crucial in the role that it plays in protecting children from circumstances of sometimes appalling abuse. Sadly, the role of the state in intervening in the care of children has had very high-profile coverage in recent months, and not for the happiest of reasons. Does the Minister accept that the changes to the funding of public law cases to be brought about by the order increase the risk that effective representation may suffer? I am now very concerned that the number of family barristers willing to undertake difficult and complex cases may fall because taking on such cases may simply be uneconomical. I was persuaded that it is not just a case of excess demand or supply; it is a case of looking at what the effect of the order will be in the real world. Can the Minister tell noble Lords what work the Government are now doing with the Bar Council, the Family Law Bar Association and the other interested parties that have been mentioned to ameliorate this concern? I was very impressed by the arguments adduced by the noble and learned Baroness in referring to the Merits Committee, on which the noble and learned Baroness sits. Its 25th report quotes the Justice Committee, as the noble Lord, Lord Thomas of Gresford, rightly said. I quote it now because it is a very worrying message: ""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"." Finally, will the Minister explain how he hopes to implement successful reforms if he does not have the good will of the profession which must put those reforms into practice and live by their results? Of course, there is pressure on all budgets all around government—all departments are, or ought to be, looking for savings where possible—but we look forward to hearing what the Minister has to say in defence of the order and the changes to funding that it makes, and exactly what his department is doing to work with the legal professions to effect changes in the smoothest manner possible.