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Baroness Thornton: My Lords, I wish to speak against the amendment proposed by my noble friend Lord Clinton-Davis. In the almost 20 years of our friendship I cannot remember ever disagreeing with him. But now I am doing so twice in one day. I suspect that he may once again feel that I do not understand the issue. I prefer to think that we have a different understanding of it.

The idea that no cash limits should be imposed in this area--this area alone of all areas of government expenditure--is extraordinary. The Government have to be able to decide their priorities and they have decided that those priorities are health and education. That is the real world. There are real constraints on the Government's budget and priorities. The funding of legal services has to be part of that process. It cannot be outside the process. In fact it is desirable that it should be part of the process. No one is suggesting that restrictions or reductions are on the cards. No one is saying that these provisions are not very important and would not be fought for. However, a balance has to be found. I think it right that this budget heading takes its place in negotiations along with all others.

Lord Ackner: My Lords, I do not follow how it can be sincerely emphasised that one of the main purposes of this legislation is to improve access to justice when

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legal aid for civil litigation is in the vulnerable state that has been described here. I therefore support the amendment.

7 p.m.

Lord Hacking: My Lords, those of us who have practised law for as long as I have, for over 30 years, will be fully aware that there is great need for support for civil law, as there is for criminal law. We have also become aware of the enormous cost to the state in defending in criminal cases. My noble and learned friend has repeatedly said since becoming Lord Chancellor that he is paying attention to that and taking steps to bring those costs into order.

We are also aware that the Government have limited resources and that they have to take an overview. It seems to me that in taking an overview the Government have to decide how much they are going to allocate to education, health, the legal services and the like. They also have to go through the rationality, when looking at legal services, of deciding how much they will allocate to civil legal services and to criminal legal services.

Therefore, although I understand the concerns that have been expressed I have to say that this amendment is unacceptable, because in the real world the noble and learned Lord has to take account of the cost of expenditure of the criminal defence service at the same time as considering the community legal service. May I add that at the same time he has to do it "vice versa". By approaching it in that way, it seems to me that this amendment, although it gives us a convenient opportunity to express your Lordships' concern, is not one which can possibly be accepted by my noble and learned friend.

Lord Kingsland: My Lords, I rise to support the amendment of the noble Lord, Lord Clinton-Davis, as well. When the noble and learned Lord the Lord Chancellor replied to the debate on the first amendment this afternoon, initiated by the noble and learned Lord, Lord Lloyd of Berwick, he was at pains to point out that one of the reasons why he could not accept that amendment was because he felt that two purpose clauses rather than one should be inserted into the Bill: one purpose clause for civil legal aid and one purpose clause for criminal legal aid.

At no stage did he say that the dominating purpose clause should be the criminal legal aid clause and the subservient or subsidiary purpose clause should be the civil legal aid clause--because that is the effect of making civil legal aid the acolyte of criminal legal aid. In my submission, were that position to be maintained it would be in breach of the noble and learned Lord the Lord Chancellor's own Amendment No. 29 as it stands, which I believe your Lordships have already adopted.

Of course we all accept that expenditure on legal aid has to take its place alongside expenditure on defence, on the health service and on educational services, and it has to fight its corner. There has to be an overall constraint. I might add that over the last four or five years the increase in the overall legal aid budget has been well within the cash constraints laid down first of

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all by the previous government and now by this Government. I recall the noble and learned Lord the Lord Chancellor, when he was Shadow Lord Chancellor, saying that the only circumstances in which he would be prepared to accept cash limits would be if there was or had been an explosion in legal aid.

However, at no stage was there any suggestion, until the Second Reading, that one part of the legal aid budget was dependent on the other. I can find no parallel in other parts of public expenditure which mirrors this proposal. For example, there is nothing in the health budget that suggests that just because general practitioners exceed their budgets there should be a corresponding reduction in the budget for surgery in hospitals. It seems to me, in exactly the same way, that no such constraint should apply to legal aid.

Lord Phillips of Sudbury: My Lords, I think the House may need reminding that never before have legal aid budgets been capped and that, as we have heard tonight, within that cap there has been, if you like, a "double whammy" for the civil system by reason of the fact that criminal legal aid is going to have absolute priority. I think it needs saying, because sometimes a contrary impression is given that the legal aid budget is now under control.

It is fair to say that it was out of control, but last year just short of 3.5 million of our fellow citizens received assistance under the legal aid scheme, civil and criminal, and that represented 3.2 per cent. more cases than in the previous year, with only a 1.2 per cent. increase in the cost to the taxpayer. The budget for this year is very little different from that of last year and I think I am right in saying that projections for two years ahead show an absolute decline in the amount of legal aid expenditure.

On top of that, in this Bill the Government are seeking to ensure that the legal services commission and indeed the Lord Chancellor of the day will have a panoply of powers and discretions so as to ensure that the projections that they make for the provision of legal services are met. They can turn the tap on and off with regard, for example, to the means test, the merits test, the amount of spend in the regions, and so on.

In other words, ultimately this is surely a fundamentally political issue. Is civil legal aid, which we are talking about, so important to our fellow citizens that it deserves protection against the double capping, if I can call it that, which currently is inherent in this Bill? In an age when every one of us year by year is ever more dependent upon an ever-increasing panoply of laws--the complexity of which is beyond the wit of the vast majority of us--I suggest that, in that general environment and at this stage for the first time in our history, it is simply unacceptable to impose, first, an overall cap and then leave civil legal aid with what is left after the criminal take. It should be unacceptable to everyone in this House and to everyone in the other place. I hope therefore that there will be great support for this amendment.

The Lord Chancellor: My Lords, this amendment seeks to ensure that when considering the amount of

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public money available for the funding of services as part of the community legal service, no account should be taken of the level of expenditure expected for the criminal defence service. I have to tell noble Lords who advance that position that it is simply unrealistic and that they are not willing to accommodate themselves to the world in which we live. In considering the amount of public money to be spent on any service, it is the duty of Ministers collectively to consider all the demands that will be made upon the public purse. So we cannot consider the public funding of legal services without considering the amount to be spent on teachers' salaries or the amount needed for nurses' salaries, for road building or any other call on public funds.

I have to say firmly to noble Lords on the Benches opposite--and I am looking firmly in the direction of the Liberal Democrat Benches--that the Prime Minister won the last election on an oft-repeated statement that schools and hospitals came first. He did not win the election on the proposition that legal aid came first--

Lord Goodhart: My Lords, did he put forward the proposition that access to justice should be cut?

The Lord Chancellor: My Lords, he put forward the proposition, in fact all the propositions, which were in a winning manifesto. The purpose of this Bill is not to cut access to justice but to enhance it. However, the adherence of some to the vested interests of lawyers is the principal objection to achieving that sensible outcome. To ring-fence one area--the criminal defence service--and exclude it from this type of consideration is utterly unrealistic. The noble Lord, Lord Kingsland, is in Cloud-cuckoo-land when he says that if too much is paid to doctors that does not entail less being paid for surgery. That is simply to be unwilling to accommodate oneself to the reality of the world which all the rest of us occupy.

All services funded by the Government are funded by the taxpayer. The Government must be free to consider competing priorities for the finite resources that are available. Those who indulge in amendments of this kind play politics, but do not accept realities.


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