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

I remind the noble Lord that there are 3,000 family law barristers at present and many highly skilled solicitor practitioners, too. Of course, if the system was falling apart, any Government would have to act, but there is absolutely no evidence that that is so. That there are difficult cases, particularly in the public law field—more difficult now than there have been over the past 50 years—is undoubtedly true, but there is absolutely no reason to believe that the family Bar will disintegrate as a consequence of these reforms. As to the effect that these reforms will have on BME providers, the Legal Services Commission has discussed the possible impacts of the family legal aid reforms on female and BME barristers with a number of different stakeholders, such as the Equality and Diversity Committee of the Bar Council. As a result of this and the detailed advice and suggestions that we received throughout the consultation, our original proposals have been substantially revisited, primarily to recognise complexity in cases. We were told that what was needed to assist female and BME barristers was to ensure that the scheme allowed for complexity to be properly rewarded. So the final fee scheme has more gradation to reward advocates who take on the more complex cases, who still are most likely to be barristers. We believe that will mitigate any adverse impact on female and BME barristers and is likely to result in a significant increase in the number of barristers who will benefit under the new scheme, rather than lose. I was asked by the noble Lords, Lord Carlile and Lord Thomas, about discrimination against women and children and litigants with English as a second language. We do not think that our schemes lead to discrimination against those classes of persons. If clients cannot give instructions well, for example, there will be a bolt-on to the fee to be paid to the advocate. As to the point about discrimination and that BME women at the Bar are reliant on legal aid, I am not sure whether the Government and the LSC should be the ones held responsible for the fact that a large section of BME and female barristers do legal aid work. It is to some extent a responsibility of the Bar itself and of clerks in chambers, who have traditionally pushed legal aid work in that direction. I would like to see figures for how much private family work is given to BME female barristers, to see whether it explains the issue to some extent. The noble Lord, Lord Lester, has a particular interest in the issue of forced marriages. He is quite right: forced marriage legislation is outside the scheme. The rates for domestic violence are based on historical costs. However, there are higher fees for such cases in the High Court. There is a bolt-on payment if the client has difficulty giving instructions and another where expert evidence is required. Finding-of-fact hearings, which are an important part of family proceedings, are to be paid as final hearings. The Government very much value the commitment of all lawyers who work in the interests of the most vulnerable members of society involved in family legal proceedings. That work, which is paid for from the public purse, is never likely to be as financially rewarding as work for private clients, but it is a vital public service. We are using the limited money and best resources that we have to meet pressures created by the recession. It is not an easy matter at the moment to try to balance the legal aid budget. Criminal legal aid is demand-led. We are obliged, under the ECHR, to spend money on representing defendants who are charged with serious cases. That is as it should be. What is not right is that extra money spent on criminal legal aid should come out of a civil legal aid budget. That is behind our policy all the way. We want to make sure that criminal legal aid does not eat up the civil legal aid budget. That is what has been happening over many years. That is why we asked Sir Ian Magee to look very carefully at whether it is necessary to have two quite separate funds to make sure that if the criminal legal aid budget is much more than is anticipated for various reasons, the balance should be paid from the criminal justice system, rather than the civil legal aid system. I hope that is a philosophy that might find some support among noble Lords present tonight. As far as the orders and the changes we have made to them are concerned, I can do no better than to quote again from the Association of Lawyers for Children, a much respected organisation. It makes these points: ""The Government’s original proposals were heavily criticised by family lawyers and judges who warned that they would lead to parents and children in complex cases being badly represented, or not even being represented at all … But the scheme has been radically restructured and revised following input from the leading practitioner groups and an intervention by the President of the Family Division"." The Government’s announcement was, ""broadly welcomed by the Association of Lawyers for Children, one of the practitioner groups involved in improving the scheme"." The co-chair of the ALC commented: ""The priority for family legal aid must be child protection. These are complex, demanding cases, involving the highest of stakes and requiring a high level of expertise to conduct properly. We welcome the Government’s recognition of that priority and reality, together with the significant improvements to the scheme that have now been made. While we still have concerns about some elements of it, the scheme now proposed is immeasurably better, fairer and more practice-reflective than that originally devised. That shows the benefits of working within the family justice system"." There has undoubtedly been a lot of collaborative working within the family justice system since the consultation period ended and that work has borne considerable fruits. The result, although not entirely popular among some commentators and groups, is now generally accepted as being much better than the papers on which the matter was consulted. We now have the possibility of a system for family legal aid fees, starting on 1 October next year, which will be fairer—it will be fair to solicitors as well as to barristers—and takes account of the fact that some family law cases are much more complicated than others. One example of the way in which we have tried to ensure that those who do the most difficult cases get the bigger rewards is that we have agreed to an extra payment depending on the court in which the family hearing is to take place. I understand how strongly the noble and learned Baroness feels about this issue and about the order that came into force in August. I hope she agrees that the new order, which it is hoped will come into force in due course and which sets the fees and conditions to run from 1 October 2010, is an improvement and that it is being introduced because of the considerable help and assistance that we have had from the FLBA and other groups of solicitors. I think that everyone who has taken part in this debate has a passion for legal aid and believes that it has a vital part to play in our legal system. The Government have no less a passion for it and we hope to improve it in the years to come.