Community Legal Service (Scope) Regulations 2005.  

We share the general concerns expressed by the noble Lord, Lord Goodhart, about the state of civil legal aid. It is clear that the budget of civil legal aid is, to some extent, a function of the problems faced by criminal legal aid. The two are intimately linked. I would like to see, in any presentation by the Government of a forecast for civil legal aid, how that fits in with their plans for criminal legal aid. If the Government can rein in the worst excesses of criminal legal aid—we all agree that, at least in the case of high-cost criminal cases, the situation is outrageous and quite unacceptable—then there ought to be more room for manoeuvre in the civil legal aid budget. In the light of that qualification, do the Government believe that all their 36 amendments to the code are really necessary? There seems a danger of the Government forgetting the principle of the 1948 legislation on civil legal aid, which was to assist people of slender means. In my respectful submission, these changes take us beyond that principle to a world where only certain specific, largely socially excluded, classes will benefit. The Government may take the view that the 1948 approach is no longer appropriate in the 21st century; but if they are to make such a philosophical change, they ought to state it as such rather than hiding it behind a morass of detail. Of course, I accept the Minister’s point that, to some degree, access to justice must always be tempered by the availability of the funds. But the problem is in this case that the availability of funds in civil aid is a function of the problems that have nothing whatsoever to do with the principles that ought to inform the provision of legal aid. I commend the Government on the way in which they consulted on these matters. As the Minister rightly said, the consultation process was long, and, gratifyingly, no fewer than 136 people responded. He was surely right to acknowledge and thank those individuals who clearly informed and improved the Government’s work. I have one or two general points to make about the detail. One of the trends in these changes is to encourage mediation rather than litigation. We all endorse the value of mediation; there is no doubt that it plays an increasing role in resolving disputes in our society. However, one should also be aware of its limits. Mediation should not become a substitute for litigation in every case. There are circumstances in which, at the end of the day, litigation is a more appropriate way of resolving problems than mediation; and it would be wrong for the civil legal aid system to so bias itself in favour of mediation that litigation for the vast majority of people was simply not possible. That point runs also into the Government’s encouragement to use complaints procedures. Again, like mediation, there is much to be said for complaints procedures; but one should be careful to acknowledge that they have limits. For example, complaints procedures do not allow for points of law to be brought or binding decisions to be delivered. There are, moreover, several complaints procedures, for example, the police complaints procedure, which do not allow for compensation to be awarded, and many complaints procedures are, in any case, both lengthy and costly. So the idea that complaints procedures are always better than litigation is, in my submission, false. Certainly, complaints procedures should not be used as a substitute for litigation where that would be more appropriate. The noble Lord, Lord Goodhart, has said everything that I would wish to say about cost protection in family cases. I respectfully adopt both the arguments and the conclusions that he has reached. One of the areas much debated in the course of the Access to Justice Act 1999 was the role of conditional fee agreements in judicial review litigation. Fortunately, at the end of those debates, the then Lord Chancellor, the noble and learned Lord, Lord Irvine, decided not to apply conditional fee agreements to judicial review cases. I respectfully observe that he was absolutely right to do that. However, I understand that, under the funding code, there will be an extension of conditional fee arrangements to judicial review cases where claim forms form part of a multi-party action. I view that measure with considerable trepidation. The Minister is well aware that the industry which lies behind the conditional fee arrangement is neither stable nor regulated. We have witnessed the recent demise of Claims Direct and the Accident Group. In any case, CFAs, as they are colloquially called, are, on balance, risk-averse to litigation.        This is not an approach which is conducive to good judicial review litigation. Judicial review litigation is not just about an inter partes dispute; it is about the wider public interest. By their very nature, judicial review cases have a lower chance of success than, for example, PI cases. So their chances of getting support under the CFA arrangements are much lower than they would be in private law cases. The Government have to be very careful about this because personal liability for the other side’s costs could be contrary to Articles 6 and 13 of the European Convention on Human Rights. I know that the European convention is sometimes thrown around by Members of both your Lordships’ House and another place as debating points; but here I think there is a real issue if public sector litigation is not properly funded for people who otherwise would not be able to engage in it. The very extensive funding changes in my submission ought to have been in primary legislation. There is an enormous amount of detail here, some of which we would like to have amended. We cannot do that because it is an order. However, here we are in the Moses Room, where we cannot vote anyway, so I will simply make the point and sit down.