Previous Section Back to Table of Contents Lords Hansard Home Page

Lord Falconer of Thoroton: My Lords, to some extent this amendment raises the same question as the

11 Feb 1999 : Column 426

previous debate, so I shall be brief. My noble and learned friend seeks to define a number of factors which would bring personal injury cases back within the scope of funding. My noble and learned friend the Lord Chancellor said in Committee that he was aware it would not be possible overnight to fund personal injury cases through conditional fees in all circumstances. The Lord Chancellor will make directions which will allow some classes of case to come back into the scope of public funding. I have sympathy with most of the criteria suggested by the noble and learned Lord, Lord Archer, in his amendment. However, I do not think that the face of the Bill is the correct place to make these exceptions.

I set out the intention of the Lord Chancellor in relation to directions that he will make so that public funding will be available in exceptional cases of high cost and complexity, where the costs of any initial investigation required to evaluate the strengths of the case are very high, or where there is a wider public interest in that, although costs and chances of success weighed against the likely damages do not make the individual cases suitable for a conditional fee, it is nonetheless a case where there are wider benefits to society from having the case settled.

As the market develops and solicitors become more confident about which case they can handle on a conditional fee basis the Lord Chancellor will feel able to pull back from public funding. Directions given by him will be more amenable to change than something set out on the face of an Act of Parliament, so that as the market changes the directions can change to reflect the new needs and priorities of society.

I hope that what I have said will provide some reassurance to the noble and learned Lord that we are to a significant extent overlapping what we seek to achieve. I hope that that will be sufficient to persuade the noble and learned Lord to withdraw the amendment.

Lord Archer of Sandwell: My Lords, I am grateful to my noble and learned friend for that caring and careful reply. I am not sure that I agree that it would not be wise to set out some of the exceptional cases on the face of the Bill and set everyone's mind at rest. But good intentions are better than bad intentions. I settle for the half loaf. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 61 to 63 not moved.]

Lord Goodhart moved Amendment No. 64:

Page 55, line 28, at end insert--
("( ) proceedings before the employment tribunals,").

The noble Lord said: My Lords, in moving the amendment, perhaps I may also speak to Amendments Nos. 65 and 66 which stand in my name.

The amendments propose that public funding should be extended to certain tribunals where legal aid has not been available under existing law. At Committee stage I moved an amendment which would have included appeal tribunals under the Social Security Act 1998 in the list of tribunals where legal aid public funding should be available. In his reply, the noble and learned

11 Feb 1999 : Column 427

Lord the Lord Chancellor persuaded me that the procedure in those tribunals made public funding inappropriate. Both tribunals investigate claims and there is no opposing party in the ordinary sense, so they do not have what one might call a normal court procedure.

That is not true of employment tribunals which follow an adversarial procedure with parties arguing their cases on each side. Furthermore, the raising of the limit on awards for unfair dismissal now makes these highly significant tribunals. Race and sex discrimination cases before employment tribunals have a particularly high priority. They tend to be complex and in some cases, especially those concerning equal pay for work of equal value, they cannot in practice be brought without legal assistance. The absence of power to award costs makes employment tribunals unsuitable for CFAs but changing to the rule that costs follow the event would deter employees from applying since they cannot face the risk of paying their employers' costs. I therefore ask the noble and learned Lord the Lord Chancellor to add employment tribunals to the list in paragraph 5 (2) of Schedule 2 on the basis, which I accept, that for the time being representation before employment tribunals would have to be given a low priority.

I recognise that employment tribunals could be added in the future, but including them in the list now would ensure that the need to provide funding for employment tribunal cases would not be ignored.

Next in the list is immigration tribunals. These are included as a warning shot. Advice and representation before immigration tribunals are of the utmost importance to applicants. In some cases they are literally matters of life and death . Few of the applicants speak English. All of them are likely to be wholly ignorant of English legal procedure and under great stress.

The current system of funding for immigration and asylum work is partly through green form legal aid and partly through Home Office funding for appeals representation. This delivers an incomplete service which leads to duplication and poor management of resources. Legal advice and assistance for hearings before the adjudicators and the tribunals are funded under the legal aid green form scheme. This scheme does not allow representation by a lawyer. Thus, while an appellant can get limited help with the preparation of the case he will be left with the responsibility of preparing his case before the adjudicator or the tribunal. The immigration advisory service and the Refugee Legal Centre receive grants from the Home Office to provide advice, assistance and representation at appeal. But the type of split funding between the first year and the appeal results in duplication of work and is a thoroughly ineffective way of managing resources. It is clear that the management and allocation of resources for advice, preparation and representation at both the initial hearing and the appeal should be conducted through the community legal service. It should have the appropriate transfer of funds from the Home Office.

I recognise that the Immigration and Asylum Bill may be a more appropriate place to deal with the issue. However, I wish to flag up the fact that we will take it very seriously when we come to that Bill.

11 Feb 1999 : Column 428

Finally, I have put my name to an amendment tabled by the noble and learned Lord, Lord Archer of Sandwell, about hearings before the social security commissioners. I can be brief because it is for the noble and learned Lord to speak to it. I wish to make only two points. First, appeals to the social security commissioners are on points of law, whereas most appeals to the social security appeal tribunals raise factual issues. It is impossible for most claimants to research and argue points of law. Secondly, the Government have indicated that welfare rights will have a high priority. A combination of these factors surely makes a case for funding appeals to the social security commissioners unanswerable, unless perhaps the noble and learned Lord the Lord Chancellor can make some suggestion as to how they can be funded by CFAs. I beg to move.

Lord Archer of Sandwell: My Lords, in Committee a number of your Lordships proposed additions to the list and my noble and learned friend most helpfully set out his thoughts on the various categories of proceedings which we discussed. One category, suggested in Committee by the noble Lord, Lord Goodhart, was proceedings before social security tribunals. My noble and learned friend gave reasons why the extension of funding to all social security tribunals was not considered appropriate, at least at that stage. I seek now to explore only one sub-category of proceeding within that general description; proceedings before the social security commissioners. Your Lordships will know that they hear appeals from various social security tribunals. Appeal lies only on a point of substance involving a matter of law, as the noble Lord, Lord Goodhart, said, and it lies only by leave of the tribunal chairman or commissioner. Therefore, there is little risk of a plethora of frivolous appeals.

Social security law has become increasingly complex. Even in the days long ago when I used to appear before the commissioners it was unusual for anyone to appear unless he was known to have some expertise in the subject. Since then, it has increasingly become a special field of practice. An unrepresented appellant is at a grave disadvantage. I pay a warm tribute to the work of the commissioners who strive to ensure that an unrepresented appellant is not unduly penalised and often they carry out their own research very commendably. But, like any members of the judiciary, they are bound to rely largely on the arguments which are addressed to them.

The people who are appealing are frequently the most vulnerable and disadvantaged in respect of health and sometimes of schooling. I wonder whether it will be possible for me to have the attention of my noble and learned friend. I am not unmindful of the valued work done by bodies such as the citizens advice bureaux, but there is not an inexhaustible supply of CAB officers trained in the subject.

Sometimes, it is not even a question of whether the claimant decides to appeal to the commissioners. A claimant my win his case before a tribunal and the Benefits Agency may appeal so that the claimant has no choice in the matter. Legal aid is now available before

11 Feb 1999 : Column 429

the employment appeal tribunal. I understand that the reason for that is that it is considered largely the equivalent of the High Court.

I am bound to point out that the social security commissioners exercise precisely the same kind of appellate jurisdiction as the employment appeal tribunal does within its field. They are regarded as being on the same kind of level as the High Court. It is certainly no less complicated a system of law which it administers, as I said.

The Government indicate repeatedly, as the noble Lord, Lord Goodhart pointed out, that they have a concern for those involved with welfare law. In the White Paper Modernising Justice, my noble and learned friend said that he proposed to accord priority to social welfare cases which help people to avoid or climb out of social exclusion.

This is a fairly modest proposal to extend Schedule 2. I hope that in this case my noble and learned friend will feel able to agree.

11 p.m.

Lord Clinton-Davis: My Lords, I wish to speak to Amendment No. 67 which stands in my name. I was encouraged by what was said in Committee by my noble and learned friend when he suggested that there may be truly exceptional circumstances in which it would be fair for public funds to be spent on representation at inquests and inquiries. He cited the example of the "Marchioness" disaster in support of what he said.

My noble and learned friend stated that the new legal aid funding scheme would contain a similar provision and that my noble and learned friend the Lord Chancellor would be considering how best that might be achieved. For that reason, I have tabled what I consider to be a probing amendment in order to find out more about the Government's intentions.

As regards coroners' inquests, I take the view that that is an important area of investigation, or it can be. But I do not say that in every case legal aid should be available automatically. I am not saying that at all. It must be apposite and within the community legal service's power to provide legal aid. It should not be a duty but a power. Without this amendment, as I understand it, there will be no power for the community legal service to fund a coroner's inquest into death or public or judicial inquiries. If I am wrong about that, I am sure that my noble and learned friend will point that out. As I say, I was encouraged by what was said at an earlier stage and I await my noble and learned friend's reply now.

Next Section Back to Table of Contents Lords Hansard Home Page