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Lord Falconer of Thoroton: My Lords, "accreditation" in this context means ascribing to a particular person or body a certain quality standard.

On Question, amendment agreed to.

Lord Falconer of Thoroton moved Amendment No. 35:

Page 4, line 6, at end insert--
("( ) The Lord Chancellor may by order require the Commission to discharge the functions in subsections (4) to (6) in accordance with the order.").

On Question, amendment agreed to.

Clause 6 [Funding of services]:

[Amendment No. 36 not moved.]

Lord Falconer of Thoroton moved Amendment No. 37:

Page 4, line 16, at end insert--
("( ) In making any determination under subsection (2) the Lord Chancellor shall take into account (in addition to such other factors as he considers relevant) the need for services of the descriptions specified in subsection (1A) of section 5 as notified to him by the Commission under subsection (4) of that section.").

On Question, amendment agreed to.

Lord Clinton-Davis moved Amendment No. 38:

Page 4, line 16, at end insert--
("( ) In determining the amount appropriate for the funding of services as part of the Community Legal Service, the Lord Chancellor shall not take into account the level of expenditure expected for the Criminal Defence Service.").

The noble Lord said: My Lords, I am very concerned about the subject matter raised in this amendment. I hope that it will give the Government an opportunity

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to define their purposes or to reconsider what has previously been said. That is the purpose of the debate that I subscribe to.

I take the view that there is a serious risk involved if the level which is appropriate for the community legal service may not be determined on its merits. The influence of the level of expenditure on criminal cases is likely to impact upon this issue very seriously.

The noble and learned Lord the Lord Chancellor has said before that his intentions are that the community legal service should operate subject to a cash limit in contrast to the situation where civil legal aid has previously been based on an entitlement benefit. The previous situation--to which my noble and learned friend objects--was that all applicants had to satisfy the merits test. Their financial circumstances would make them eligible for assistance or entitle them to legal aid. One of the merits of the situation was that it provided for a measure of consistency to apply in different parts of the country. Now that we are moving to a cash-limited system, that consistency might be very difficult to achieve. A requirement of the Lord Chancellor to take account of identified need before settling the funding for the commission could help to mitigate that risk.

At the Committee stage my noble and learned friend argued that funding for help in civil cases should be regarded as subordinate to funding in criminal cases; that, indeed, funding for civil cases should be what is available after the prior claims of criminal cases had been met. I do not disagree with the Lord Chancellor exempting assistance in criminal cases from cash limiting because of the need to meet the obligations under the European Convention on Human Rights. But should that mean that any unexpected expenditure in criminal cases automatically leads to a corresponding reduction in the civil field without any regard to the merits of the case and in the context of public expenditure generally? This is a serious matter. I am anxious to hear from my noble and learned friend whether he has reflected further or whether he adheres to the point he made previously. I beg to move.

Lord Goodhart: My Lords, I support the noble Lord, Lord Clinton-Davis. I regard this as one of the most important amendments to the Bill; in all probability the most important. We have long been aware that one of the purposes of the Bill is to cash limit civil legal aid. We recognise that in recent years, although not perhaps in the past two years, the cost of civil legal aid has mushroomed. We have therefore reluctantly accepted the need for capping.

We were glad to see in the Bill that criminal legal aid was not to be capped. What we had not realised until Committee stage was that the noble and learned Lord the Lord Chancellor intended in effect that there should be a single block grant to cover both criminal and civil legal aid so that the more that was spent on criminal legal aid the less would be available for civil legal aid. Nothing in the Bill or in the Explanatory Notes makes that clear. Indeed, Clause 6(2) states:

    "The Lord Chancellor ... shall pay to the Commission the sums which he determines are appropriate for the funding of services by the Commission as part of the Community Legal Service".

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We recognise that the Lord Chancellor's decision as to what is appropriate must take into account the Government's targets for public spending and the demands from other claimants for funds. However, as I read the Bill, the needs of the community legal service constitute a free-standing claim to which public funds are allocated on the basis of the merits of that claim as the Government see them and the right to whatever is left over after the criminal defence service has been funded is something entirely different. I see no reason whatever why the two should be linked. Indeed, I believe it is highly arguable that the Lord Chancellor would be in breach of his duty under Clause 6(2) if he decided that what was appropriate funding for the community legal service was whatever was left over after funding the criminal defence service. That could be nothing at all.

Criminal legal aid is part of the cost of maintaining law and order in this country. Civil legal aid is intended to give access to justice to people who cannot afford to pay for it themselves. The cost of criminal legal aid has gone up over the years, to a large extent because of the increase in crime. That may or may not continue. I hope it does not. But if it does, the cost of paying for the defence of accused persons will necessarily go up too. Why should that increase in cost be paid for by depriving other people of access to justice?

I believe it is essential to prevent that happening. I trust that the Lord Chancellor will either accept the amendment or render it unnecessary by giving an undertaking that the funding of the community legal service will be considered independently of the funding of the criminal defence service. I find it difficult to believe that the noble and learned Lord the Lord Chancellor could have accepted of his own volition a proposal so damaging to access to justice by people in need.

Lord Carlisle of Bucklow: My Lords, I wish to briefly to add my support to the amendment moved by the noble Lord, Lord Clinton-Davis. It would be extraordinary if the amount of money to be made available for civil legal aid were to depend entirely on the amount of money spent on criminal legal aid. How can it be said that appropriate money is being provided for one service when we have just had an amendment which says that the Lord Chancellor, in deciding what is the appropriate amount of money to fund the community legal service, shall take into account the needs of that service, and then, having taken that into account, the amount of money available is affected by powers totally outside the control of the community legal service; namely, because of the amount being spent on criminal legal aid? I cannot see that there is any greater relationship between these two individual parts of the funding of legal aid, civil and criminal. It is like saying, for example, that if you have to spend more on defence then, automatically, you will reduce the amount spent on schools or something of that nature.

Clearly, the Government are entitled to cap the amount of money they wish to spend on legal aid as a whole, but to make one general cap and then say that

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the amount provided for civil legal aid is wholly dependent on what is spent on criminal legal aid is totally illogical.

Lord Hunt of Wirral: My Lords, I wish to support the noble Lord, Lord Clinton-Davis. It is wrong to allow funding for the community legal service to be adversely affected, in the way that would occur without this amendment, by the amount of spending on the criminal defence service. There may be a problem here. I hope that the noble and learned Lord the Lord Chancellor will share with us whether or not the pass has already been sold. If he has agreed with the Chief Secretary that there will be one block, that was a bad decision for all those who are relying on the community legal service to meet needs right across the country.

I know that the Chief Secretary drives a hard bargain. My noble friend Lord Carlisle will remember in his negotiations with the Treasury that wherever there was an argument a cash limit was involved. It is important to fight those cash limits, to ring-fence them, and to ensure that where there is a needs-led budget a reasonable assessment is placed on the amount that will be required and it should not eat into other parts of the budget which are right to observe and which ought to be met.

I hope that the noble and learned Lord the Lord Chancellor will come clean about whether or not he has already negotiated a settlement which makes this amendment impossible. I very much hope that that is not the case. It would be very regrettable if we were to find, through some unforeseen demand on the criminal legal aid service, that the amount available for the community legal service was savagely cut.

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