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Funding Code: Criteria and Procedures

My Lords, I am grateful to the Minister for presenting this statutory instrument for our consideration today. I really do not know why the Government are bothering at this stage, when they have every intention of abolishing the Legal Services Commission and replacing it with an executive agency whose responsibilities are not yet clear. I very much suspect that we will be going through all this again quite shortly, but one or two things need to be said. First, if the legal aid budget in the sphere of civil actions is to be looked at, surely the very first thing is to ensure that the family Bar is properly provided for. There is a crisis at present in the family Bar, which we have been discussing throughout this year. Nothing in this code assists the family Bar at all. Indeed, I am amazed to discover that the first of the plums that the Minister pulled out of the duff was in relation to the new provisions to allow an opponent in family law proceedings, private law, family, children or finance cases to oppose the granting of legal aid. The Minister referred to vexatious representations. Certainly, in my experience the most challenging and difficult cases are those involving families and children, where the litigants are very much at each other’s throats. Since the notice is to be given to the opponent by the legal aid authorities, I can see this giving rise to very considerable conflict and disquiet. The savings that have come out of this enormous exercise are not great, as the noble Lord, Lord Henley, has said. Indeed, the Minister says that having come to the end of it and looked at everything, the code is not designed to make savings at all. The best way of making savings was described by Lord Justice Wall, in the Court of Appeal in the case of SW and KSW v Portsmouth City Council, reported at [2009] EWCA Civ 644. In that case, a stepfather had been accused of raping his stepdaughter. As a result of her accusations, his two children by the mother of all three children were taken into care and were living with foster-parents. That is the sort of issue arising in those proceedings. The stepfather was made a party to the care proceedings but was refused public funding and had to represent himself. There was a finding-of-fact hearing to ascertain whether the rape allegation was true. Some 14 days were spent on that hearing alone. Lord Justice Wall said that, ""those who control the court’s purse strings simply do not—or will not—understand … that competent legal representation not only saves time (and by the sensible identification and elucidation of issues makes cases easier for the court to resolve) but that it also saves money"." He continued, ""I am in no doubt at all that if the appellant had been legally represented before the judge in the care proceedings; (a) the hearing would not have overrun so grossly; (b) the result would have been much more likely to be perceived by all to have been fair; and (c) the cost to the public and the parties in terms of both money and stress would have been substantially less"." The legal aid authorities can best save money by ensuring that the parties in family proceedings are properly represented. That is why I particularly deplore this, since it is in that area that opposition to the granting of legal aid is now to be allowed and considered by the legal aid authorities. I find that very much a retrograde step. There are also other changes which juggle the Legal Aid Fund around without—quite deliberately—making any particular saving in cost. The whole problem with legal aid is that it has remained at a fairly constant level over many years, for both civil and criminal legal aid. Whereas billions are paid to bankers to keep banks on the road for a very limited period, the Legal Aid Fund has increased, I think, by £500 million to £2.1 billion, where the ceiling now exists, over the whole period that the Government have been in power—from 1997 to the present. It simply causes problems and expense. I hope that whatever Government may be in power will, in looking at the proposals for an executive agency in due course, look at this artificial cap on legal aid, which has caused the problems that I have outlined.