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16 Mar 1999 : Column 618

Division No. 1
Division No. 1

CONTENTS

Ackner, L.
Addington, L.
Alton of Liverpool, L.
Avebury, L.
Barber, L.
Beaumont of Whitley, L.
Bridgeman, V.
Bruntisfield, L.
Cadman, L.
Calverley, L.
Carlisle, E.
Clancarty, E.
Clement-Jones, L.
Cowdrey of Tonbridge, L.
Craig of Radley, L.
Dahrendorf, L.
Dholakia, L.
Donaldson of Lymington, L.
Effingham, E.
Ezra, L.
Gainford, L.
Geraint, L.
Gisborough, L.
Goodhart, L. [Teller.]
Grey, E.
Halsbury, E.
Hampton, L.
Hamwee, B.
Harris of Greenwich, L.
Hayter, L.
HolmPatrick, L.
Hooson, L.
Hutchinson of Lullington, L.
Inglewood, L.
Kingsland, L. [Teller.]
Kirkwood, L.
Kitchener, E.
Lloyd of Berwick, L.
McConnell, L.
Mackie of Benshie, L.
MacLaurin of Knebworth, L.
McNair, L.
Maddock, B.
Mar and Kellie, E.
Middleton, L.
Miller of Chilthorne Domer, B.
Milverton, L.
Monro of Langholm, L.
Monteagle of Brandon, L.
Morris, L.
Mountevans, L.
Moyne, L.
Moynihan, L.
Newall, L.
Northbrook, L.
Nunburnholme, L.
Park of Monmouth, B.
Pender, L.
Phillips of Sudbury, L.
Razzall, L.
Redesdale, L.
Rodgers of Quarry Bank, L.
Russell, E.
Sandberg, L.
Sandford, L.
Soulsby of Swaffham Prior, L.
Taverne, L.
Thomas of Gwydir, L.
Thomas of Walliswood, B.
Tordoff, L.
Trenchard, V.
Trumpington, B.
Vivian, L.
Warnock, B.
Waverley, V.
Wigoder, L.
Wilcox, B.
Williams of Crosby, B.
Wynford, L.
Young, B.

NOT-CONTENTS

Acton, L.
Allen of Abbeydale, L.
Allenby of Megiddo, V.
Alli, L.
Amos, B.
Ampthill, L.
Annan, L.
Archer of Sandwell, L.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Berkeley, L.
Blackstone, B.
Blease, L.
Bledisloe, V.
Borrie, L.
Bragg, L.
Brooke of Alverthorpe, L.
Brookman, L.
Bruce of Donington, L.
Burlison, L.
Callaghan of Cardiff, L.
Carmichael of Kelvingrove, L.
Carter, L. [Teller.]
Castle of Blackburn, B.
Charteris of Amisfield, L.
Chorley, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Crawley, B.
David, B.
Davies of Oldham, L.
Dean of Thornton-le-Fylde, B.
Dixon, L.
Donoughue, L.
Dormand of Easington, L.
Dubs, L.
Eatwell, L.
Elis-Thomas, L.
Evans of Parkside, L.
Ewing of Kirkford, L.
Falconer of Thoroton, L.
Farrington of Ribbleton, B.
Gladwin of Clee, L.
Gladwyn, L.
Glanusk, L.
Glenamara, L.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Gray of Contin, L.
Grenfell, L.
Hacking, L.
Hardie, L.
Hardy of Wath, L.
Haskel, L.
Hayman, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Howie of Troon, L.
Hoyle, L.
Hughes, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Ilchester, E.
Irvine of Lairg, L. [Lord Chancellor.]
Islwyn, L.
Janner of Braunstone, L.
Jay of Paddington, B. [Lord Privy Seal.]
Jenkins of Putney, L.
Judd, L.
Kintore, E.
Laming, L.
Lockwood, B.
Lofthouse of Pontefract, L.
Lovell-Davis, L.
Macdonald of Tradeston, L.
McIntosh of Haringey, L. [Teller.]
Mackenzie of Framwellgate, L.
Mallalieu, B.
Mason of Barnsley, L.
Merlyn-Rees, L.
Milner of Leeds, L.
Mishcon, L.
Molloy, L.
Monkswell, L.
Montague of Oxford, L.
Morris of Castle Morris, L.
Morris of Manchester, L.
Nelson, E.
O'Neill of Bengarve, B.
Orme, L.
Peston, L.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prys-Davies, L.
Puttnam, L.
Ramsay of Cartvale, B.
Randall of St. Budeaux, L.
Renton of Mount Harry, L.
Richard, L.
Roll of Ipsden, L.
Ryder of Warsaw, B.
Sainsbury of Turville, L.
St. John of Fawsley, L.
Sandwich, E.
Sawyer, L.
Sefton of Garston, L.
Shepherd, L.
Shore of Stepney, L.
Simon, V.
Simon of Glaisdale, L.
Simon of Highbury, L.
Smith of Gilmorehill, B.
Stallard, L.
Stoddart of Swindon, L.
Strabolgi, L.
Strafford, E.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Taylor of Gryfe, L.
Tenby, V.
Thomas of Macclesfield, L.
Thornton, B.
Tomlinson, L.
Tryon, L.
Varley, L.
Weatherill, L.
Wedderburn of Charlton, L.
Wharton, B.
Whitty, L.
Williams of Elvel, L.

Resolved in the negative, and amendment disagreed to accordingly.

16 Mar 1999 : Column 619

3.43 p.m.

Clause 7 [Services which may be funded]:

Lord Phillips of Sudbury moved Amendment No. 2:


Page 5, line 17, at end insert--
("( ) In funding services as part of the Community Legal Service, the Commission shall aim to obtain the best long term value for money on the basis that all persons and bodies applying for funding who meet the standards set by the Commission shall be able to provide services for individuals under this Part of this Act on terms as to remuneration and otherwise, set by contract or by regulations.").

The noble Lord said: My Lords, this amendment is supported, like the previous one, by the Law Society, the Legal Action Group and the Legal Aid Practitioners' Group whose 500 member-firms probably know more than anyone about the workings of legal aid and the likely consequences of competitive block tendering.

It has been apparent for some time that the Legal Aid Board and the Government intend, after an intermediate phase of allowing only solicitors with legal aid franchises to do legal aid, to move to a position of unparalleled further restriction of public choice in the selection of a solicitor. This will be effected by means of exclusive competitive block tendering.

16 Mar 1999 : Column 620

My amendment refers to the aim of the legal services commission as being,


    "to obtain the best long term value for money".
It reinforces quality by limiting legal aid to those firms which,


    "meet the standards set by the Commission".
It entitles the commission to impose other terms,


    "as to remuneration and otherwise ... by contract or by regulations".
Last, but not least, it gives the public the right to engage the services of any solicitor meeting all those requirements.

But how would competitive block tendering work? This much we do know: in a letter to The Times of 25th January last the noble and learned Lord the Lord Chancellor said,


    "the point of my reforms is to give people on legal aid a choice from amongst 3,000 quality assured firms".
At present 10,600 solicitors' offices carry out legal aid and around 6,000 have, or are in the process of getting, legal aid franchises.

The legal aid authorities will put out legal aid work to tender on the basis--it is inescapable--that at the end of the day a high proportion (at least half) of the firms who were carrying out quality assured legal aid work immediately before the competitive tender will thereafter be prohibited from doing any legal aid work at all. The cull will bear disproportionately on the small legal aid firms (frequently among the best) and also on firms which do only a modicum of legal aid work, often of a specialist kind. It will not be practical for many of them to bid for the big block work, as the Government recognise.

The fact that many of the firms cut out may have the highest reputation, have highly satisfied clients and do excellent work, will be of no avail. Out they will go and with them will come further polarisation of the profession with predictable results on the long-term quality of legal aid work.

The Government also persist in pretending that block tendering will not create local legal aid monopolies. In counties characterised by small towns and villages it is bound to do so and in many of them there will be no contracted legal aid provider at all.

The Government persist, too, in asserting that the present arrangements "guarantee" work to solicitors' firms and preclude competition--an oft-repeated cry in these debates. Yet in today's world clients are not fools. They want to win their cases. They also want fair charges because most of them on legal aid have to pay a substantial contribution to their costs. So they go to the solicitors who they think are most likely to achieve that for them.

Furthermore, this amendment does not endorse the status quo. It does not, as the noble and learned Lord the Lord Chancellor recently put it,


    "largely freeze the existing pattern of (legal aid) provision in place".
Rather, it allows the commission to set the standards it thinks fit and to impose terms under the Act as to remuneration and otherwise whether by contract or regulations. By contrast, today, any solicitor, franchised or not, can offer to do legal aid willy-nilly.

16 Mar 1999 : Column 621

Another government claim is that competitive block tendering will not only improve quality, but also lead to lower cost to clients and the legal aid scheme. This counter-intuitive assertion lies at the heart of these reforms.

If one asks the profession it is more or less unanimous. Legal aid is already much the lowest paid work that it does. Most of the solicitors, far from wanting more, want less. They are falling behind firms which eschew legal aid altogether and so have problems recruiting and retaining good staff.

The only extensive research done into the effects of bulk contracting in other jurisdictions of which I am aware is the recent work by Roger Smith published by the Legal Action Group, of which he was a director, under the title Legal Aid Contracting--Lessons from North America. In it he said this:


    "The driving force behind the development of contracts with bulk providers of legal services has been the political requirement of cost containment".
His conclusion is that,


    "contracting for large numbers of cases tends to set up pressures for cost containment at the expense of quality".
One would have thought that that was pretty obvious. Yet the Government, with absolutely no evidence to rebut this basic criticism, simply go on asserting that under the new regime economy of scale will prevail, prices will come down and the worker bees of the new regional boards will swarm over the bulk providers to ensure quality.

I suggest this points to a potential Whitehall farce, and a deadly one, where the bureaucratic means used to remedy the existing shortcomings are so unwieldy and expensive that they constitute a completely new and larger problem. That will be seen in the expense to the new regime of accommodating the small providers of legal aid which, it is now suggested, justifies their exclusion from block contracting. As the Lord Chancellor recently said, that would avoid,


    "having to manage a larger number of small contracts".

Ultimately, I suppose, it comes down to whether the interventionist command system, promised by the Bill, with its crowning glory of exclusive competitive block tendering, will perform better than a more pragmatic regime which sets quality standards and remuneration terms but leaves the clients to decide who shall do their work.

This issue is not about protecting solicitors. It is about preserving the public's real rights of access; their right to select their solicitor from among the quality assured firms and in a location accessible to them. With control over the means test, the merits test and the terms and conditions on which legal aid must be carried out by lawyers, and just about everything else, this amendment is a modest but vital measure to secure, in the long term, what the name of the Bill promises, namely, access to justice. I beg to move.


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