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Legal Aid (Prescribed Panels) (Amendment) Regulations 1999

8 p.m.

Lord Bach rose to move, That the draft regulations laid before the House on 29th November be approved [3rd Report from the Joint Committee].

The noble Lord said: My Lords, I hope that this order will take slightly less time than the previous one.

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These regulations amend the Legal Aid (Prescribed Panels) Regulation 1999. The existing regulations provide that legally aided clinical negligence cases may be carried out only by legal service providers who are members of a prescribed panel. The panel consists of firms who hold a franchise from the board for that type of work.

I shall say a brief word about clinical negligence panels. It is clear that the clinical negligence panel has led to better results for the clients and less public money being wasted investigating hopeless cases. There are currently 156 firms on that panel, which has been operating now since February 1999. One of the conditions for a clinical negligence franchise, and therefore a prior condition of membership of the prescribed panel, is that the solicitor is a member of either the Law Society's medical negligence panel or the Association of Victims of Medical Accidents panel. Statistics for 1996-97 showed that members of those panels had a higher success rate compared with non-panel members, and recovered on average £48,500 for their clients as compared with £18,000 by non-panel members. For every £1 of taxpayers' money spent, panel members secured £4.10 in damages compared with £1.70 for non-panel members. I would also say--this is an important point which relates back to our last debate--that since the clinical negligence panel has been in operation, the Lord Chancellor's Department has received precisely no complaints about inadequate access.

There is an important point to be made here. People with a clinical negligence claim, which represents a tragedy in their lives, deserve expert assistance. That is what the health authority or the doctors they are suing will rightly have. People on legal aid deserve the same. We have banished for ever a state of affairs in which a solicitor could get legal aid for his client and take the case all the way through the courts--regardless of his want of expertise. Our reforms are all about quality assurance and giving people access to specialists. The short answer to complaints about the reduction in the number of franchisees is this: there is choice, but among the expert, not the inexpert.

I was gratified to read the debate in another place on these regulations. The Liberal Democrat spokesman there spoke in support of them. He said that he supported the regulations, especially with regard to specialisation and value for money. I am quite sure that will be the consistent attitude shown in this House, too.

The regulations before us today amend the existing regulations to create similar requirements for family cases and immigration cases. I should like to explain in a little more detail how a firm of solicitors can obtain a place on the family or immigration panels.

The only qualification which a firm needs in order to obtain a place on either the family or the immigration panel is to be, for the time being, authorised by a contract with the board to provide representation in that category. As I explained in the earlier debate, a precondition of obtaining a contract is to pass a full or

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provisional audit against the legal aid franchise quality assured standard. To obtain a franchise, a firm must show competencies in, inter alia, business planning, client care, financial management and equal opportunities. Most importantly, the firm must have a solicitor who can attain the relevant supervisor standard. To do this, solicitors must belong to an accredited panel, such as the Law Society's family panel; have gained experience, knowledge and understanding in the franchise category by doing a specified amount of casework themselves; and they must actively maintain that knowledge and demonstrate that they are sharing that knowledge with their staff. Clients can therefore be confident that, where their cases are being conducted by junior staff, those staff are being supervised by an experienced and knowledgeable solicitor.

For the first round of contracting only--that is, for contracts that commence on 1st January next year--all firms which have applied for a franchise within the board's published timetable and which have obtained the relevant franchise, were guaranteed a contract in the family and immigration categories. These firms were put on the board's "Bid Panel A". Firms which failed to apply or qualify in time for a franchise have been placed on a reserve panel, "Bid Panel B", and may still qualify for a contract after 1st January provided there are funds available, if there are gaps in access after the award of contracts to Bid Panel A.

I have said that these regulations establish a family franchise panel and an immigration franchise panel as prescribed panels under Section 32(7) of the Legal Aid Act 1988. Section 32(1) of that Act creates a general right for a person entitled under the Act to receive advice or assistance or representation, to select any legal representative willing to do so to advise, assist or act for him or her. That right may be qualified by regulations made under Section 32(7), so that the person receiving assistance may select only from legal representatives who are for the time being members of a prescribed panel.

I do not think I need to go through with your Lordships the regulation that sets up the family franchise panel, or the definition of "family proceedings" in Regulation 6; likewise with Regulation 7, under which an immigration franchise panel is set up. Regulation 8 defines the meaning of "immigration proceedings". Perhaps I should remind your Lordships of that definition in the regulations we are considering. The proceedings are defined as,


    "proceedings relating to immigration, nationality or asylum",

before specified courts. The main types of proceedings covered by this definition are judicial review, habeas corpus and appeals from the Immigration Appeals Tribunal to the Court of Appeal or to the House of Lords.

The number of people seeking asylum in this country has grown over the past few years and the indications are that the numbers will, for the immediate future, continue to grow. The Legal Aid Board is awarding contracts to meet this increasing demand and has retained a significant reserve which

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will allow it to expand contracts as the patterns of genuine need become clearer. In particular, the board will be able to react to changes in the geographical distribution of demand following the dispersal of asylum seekers around the country. I hope that that statement will give some comfort, at least, to the noble Lord, Lord Hylton.

Under the general civil contracts, legal aid will for the first time cover representation before the immigration appellate authorities. This will reduce duplication and help to make the system more effective.

The creation of a quality assured immigration franchise panel also addresses--here I come back to an argument I sought to employ in the previous debate--the problem of unscrupulous advisers who have been able to take advantage of asylum seekers up to now. The franchise process has excluded a substantial number of unscrupulous and incompetent firms from the scheme.

Concerns have been expressed about the effect of the Government's reform on access to legal services. We have heard them clearly tonight. I have already given the figures as regards 5,000 solicitors accounting for 90 per cent of legal aid expenditure and the number of firms receiving contracts for January being around 5,000. The reality is that most of the firms which have not been awarded contracts have in the past conducted only a few cases each year. In family work, the Legal Aid Board is to award over 4,500 contracts. It is also awarding about 530 contracts in immigration work. A substantial sum is kept in reserve to allow for the number of contracts to be increased should the need arise. We would say, "Compare the number of contracts with the 800 Benefits Agency outlets in England and Wales, or indeed with the number of constituency MPs in England and Wales". I have estimated the figure at about 550.

It is also the case that the number of firms allowed to do clinical negligence cases has been limited to 156, with no detrimental effect whatsoever on access and no complaints from the public. Contracts are flexible instruments. They can be structured to deal with specific geographical circumstances. Members of the clinical negligence panel, for example--and this is important bearing in mind some of the concerns that have been expressed--are required to travel to their clients where that is appropriate.

In future, there will be a wider range of alternative methods of delivery for legal advice available to the public. The board will shortly be piloting schemes which include telephone advice, outreach surgeries in rural areas, and second-tier advice services, which will provide advice on difficult areas of law to contracted legal service providers.

As I said earlier, contracting will be good for the client, good for the taxpayer and good for competent providers. I very much hope that those who are wary of it will see its advantages in due course. I commend the regulations to the House.

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Moved, That the draft regulations laid before the House on 29th November be approved [3rd Report from the Joint Committee].--(Lord Bach.)


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