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Lord Falconer of Thoroton: My Lords, these amendments are grouped together since they are of a similar nature. Each seeks to extend the scope of the community legal service. My noble and learned friend Lord Archer of Sandwell proposes an amendment to Schedule 2 which would allow the commission to fund representation in proceedings before the social security commissioners. The noble Lords, Lord Goodhart and Lord Thomas, propose a similar amendment in relation

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to employment tribunals and immigration tribunals. My noble friend Lord Clinton-Davis proposes that public funds should be available to provide representation at coroners' inquests and at public and judicial inquiries.

Lord Clinton-Davis: My Lords, I did not say "should be". I said that there should be the power to make it available.

Lord Falconer of Thoroton: My Lords, that is quite right. I stand corrected. We debated similar amendments in Committee so I shall try to be brief.

At present advice and assistance are available for all those proceedings under the green form scheme but, as with most tribunals, legal aid is not available for representation. Under the new scheme, my noble and learned friend the Lord Chancellor intends initially to mirror the present arrangements so that advice and assistance will continue to be available but representation will not. That initial view is, of course, subject to the interdepartmental review which is due to start shortly. That review will consider for the various tribunals the extent to which current procedures and other arrangements, including representation, comply with our ECHR and European Union obligations. It would be premature to reach any decisions about publicly funded representation before that review is complete.

Having said that, perhaps I may deal individually with each tribunal referred to. I deal first with the social security commissioners referred to by the noble Lord, Lord Goodhart and my noble and learned friend Lord Archer. As my noble and learned friend Lord Archer said, the commissioners hear appeals on points of law from social security appeal tribunals. The vast majority of hearings are paper hearings, with only approximately 300 cases a year settled by an oral hearing out of a total of around 4,000. The help we propose to make available includes everything short of advocacy and we think it is therefore sufficient to prepare a case for a paper hearing. Subject to any findings of the interdepartmental review, to which I have already referred, the Government do not believe it would be justified to extend the scope of legal aid to provide representation in oral hearings.

We have to face up to the fact that we will be operating under a controlled budget. Any extension of scope in one area would have to be at the expense of another area. Representation is already provided by a number of not-for-profit organisations such as the Child Poverty Action Group, and we believe that the help that the commission will fund under the community legal service will be sufficient for an applicant to present his or her case thoroughly. Despite the eloquent pleas made by my noble and learned friend Lord Archer and the noble Lord, Lord Goodhart, therefore, it cannot be a priority to extend the scope in this area.

Lord Archer of Sandwell: My Lords, I am grateful to my noble and learned friend for giving way; I hope I am not being tiresome. Surely the fact that there are so few oral hearings is an argument in favour of granting it because the calls on the fund would be very small.

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Lord Falconer of Thoroton: My Lords, surely that points the other way. If there are other sources of funding available and other areas which could be assisted by the community legal service, then perhaps it is not appropriate and not a priority. If we extend the scope, then we necessarily treat it as one of our priorities and that may not be the appropriate thing to do in the light of the limited number of cases. The fact that they are paper cases; the fact that advice can be obtained through the Green Form Scheme and the fact that there are other bodies which will be assisted by the community legal service accounts for the difference. I appreciate that there is no bright line answer to that; it is a question of where one draws the line.

Turning to immigration, publicly-funded representation is already available. The Home Secretary makes grants under Section 23 of the Immigration Act 1971 to the Immigration Advisory Service and the Refugee Legal Centre. Those are two voluntary organisations which provide free advice, assistance and representation at those appeals. That complements the advice and assistance that is available under the Green Form Scheme.

As the noble Lord, Lord Goodhart, knows, the whole immigration and asylum system is in flux. The Immigration and Asylum Bill was introduced in the other place on Monday. The Lord Chancellor has been working closely with his right honourable friend the Home Secretary on many aspects of the reforms, such as the rationalisation of the appeals system and the control of unscrupulous immigration advisers. We are therefore actively involved in ensuring that good quality advice, assistance and representation are available for immigration and asylum matters. Again, that specific amendment does not seem appropriate and we cannot agree to it.

On the question of whether the commission should fund representation in proceedings before employment tribunals, the Lord Chancellor's views are well documented. As he said in Committee, there are certainly some cases before employment tribunals for which legal representation is desirable because often factual and legal issues arise which are resolved indistinguishably from litigation in the ordinary courts. But that is not to say that representation should necessarily be provided through legal aid or its successor. A number of organisations already provide some representation in these proceedings; for example, trade unions, various not-for-profit organisations such as Law Centres, the Equal Opportunities Commission, the Commission for Racial Equality and the Free Representation Unit. But they certainly do not cover the whole ground.

The Lord Chancellor is also considering how to make conditional fee agreements more attractive for cases before employment tribunals. They are currently available for people to use, but as the Lord Chancellor explained in Committee, where, under the employment tribunals' current cost rules, costs do not follow the event, a successful applicant under a conditional fee agreement would have to pay his lawyer's success fee and the insurance premium from the damages awarded because he could not recover them from the respondent.

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The Government believe that, where the private sector can provide an effective service, such as conditional fee agreements, public money should not be spent. With a change to the employment tribunals' cost rules, conditional fee agreements could be a viable and attractive option for many cases before the employment tribunal.

The reform of the legal aid scheme will give control over expenditure and the ability to target resources to priority areas. Savings generated in one area can be spent in another. The Lord Chancellor has said that he is willing to consider whether the commission should, in time, fund representation in certain cases before employment tribunals. However, he cannot consider this until he has control over expenditure. By that time, the Government will also have completed a review, for all tribunals, of the extent to which current procedures and other arrangements, including representation, comply with our ECHR and EU obligations.

As I said previously, coroners' inquests and public judicial inquiries, unlike most court proceedings, are inquisitorial. Legal representation should be unnecessary, which is why civil legal aid is not available. The new scheme will operate under a controlled budget. There will be many competing claims on this budget and resources will be targeted towards priority areas. Any extension of scope would have to be at the expense of other parts of legal aid expenditure. We cannot agree that providing publicly funded representation at inquests and inquiries should be a priority for taxpayers' money.

Lord Clinton-Davis: My Lords, when we last discussed this, the noble and learned Lord said that public funding might be available, as in the "Marchioness" case. Am I wrong?

Lord Falconer of Thoroton: My Lords, no, absolutely right!

Lord Clinton-Davis: My Lords, if I am absolutely right, I have at least one success.

Therefore, presumably the position is that public funding comes out of another budget. That is the point that I anticipate the noble and learned Lord making. In reality, it does not make a lot of difference. I repeat that I am not asking that it should happen, but that the Government should have the power to make it happen through the legal aid commission.

Lord Falconer of Thoroton: My Lords, it is my fault; there was such a long introduction about why the power is there. That is why my noble friend interrupts me--

Lord Thomas of Gresford: My Lords, perhaps I, too, may intervene. I have been very quiet!

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The noble and learned Lord refers to priority areas. The White Paper, Modernising Justice, states that the area of greatest priority is,


    "social welfare cases, which help people to avoid, or climb out of, social exclusion; for example, cases about people's basic entitlements, like a roof over their heads and the correct social security benefits".
How is the £40 million that is to be saved on negligence cases to be spent on such priority areas? Nothing in the Bill assists us on that point.


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