Community Legal Service (Scope) Regulations 2005.   

I am most grateful to the noble Lords, Lord Kingsland and Lord Goodhart, for looking at this material so very carefully. The noble Lord, Lord Goodhart, said that he had looked at these provisions with considerable care—we are grateful to him for that—and that he accepts most of them. But he has a number of reservations, on which I hope to reassure him. The noble Lord referred to personal injury. Conditional fee agreements are available for personal injury cases. In exceptional cases they will be covered by exceptional funding where the criteria and means tests are satisfied. Both noble Lords were interested in cost protection—what happens and will clients be warned if their conduct puts them at risk of a costs order. The removal of cost protection provides solicitors with an additional tool to persuade clients to behave reasonably. Solicitors can point to a costs sanction if clients seem determined to conduct their proceedings unreasonably. In most family proceedings costs are not awarded unless one party has behaved unreasonably. The Legal Aid Practioners Group and the Solicitors’ Family Law Association, now called Resolution, supported this in consultation as a tool to encourage reasonable behaviour by their clients. The removal of cost protection is designed to act as a deterrent to those funded clients who behave unreasonably. The current incentives of the legal aid scheme do not encourage litigation to be seen as a last resort. Cost protection makes litigation almost risk free for the funded client, which means that the usual private client instinct to treat litigation as a last resort does not apply in legal aid cases. It would ultimately be for a judge to decide whether a costs order should be enforced. The noble Lord, Lord Kingsland, started by reminding us of the developments in 1947 and the purpose of legal aid. He asked about the nature of the relationship between criminal legal aid and civil legal aid and whether there is a danger that one is being penalised because of the cost of the other? Reductions in civil expenditure to date reflect our refocus on priorities—for example, in the withdrawal of support from most personal injury cases where solicitors are ready to offer conditional fee agreements, known as ““no win, no fee””—but it is clear that unless the criminal legal aid budget can be contained, highly undesirable cuts in civil legal aid would be necessary. The Criminal Defence Service Bill was introduced into the House of Lords on 23 May 2005. It introduces a new means test for criminal legal aid representation and transfers the power to grant such representation from the courts to the LSC. By embedding the principle that those who can afford to pay for their criminal defence should be asked to do so, the Government will be able to deliver a more sustainable legal aid system. This will help to ensure that valuable legal aid resources can be targeted more effectively at those vulnerable individuals and groups supported by the Community Legal Service and bring savings of what we estimate will be upwards of £35 million a year. The noble Lord, Lord Kingsland, asked whether the Government are refocusing legal aid by stealth so that it provides only for those who are socially excluded. Legal aid is not confined to the poorest in society. Legal aid help with mediation, general family help and legal representations is available to those with a gross income of up to approximately £27,500 a year, subject to their case passing the merits test. Legal help is available without contribution and legal representation is available on a contributory basis, with a sliding scale of payments depending on the client’s ability to pay. Also, not all services within the Community Legal Service are subject to means testing. CLS Direct provides certain information and advice over the telephone or the Internet without reference to means, thus providing a service to everyone, whatever their income. The noble Lord, Lord Kingsland, referred to the budget. We have had to make savings across the board in criminal and asylum as well as civil matters. This is to ensure that we live within a limited budget. As I said many times in my opening remarks, we have to focus on priority cases. The question of compensation was raised. We are not suggesting that the complaints systems can offer remedies equivalent to the court or will give the client exactly what he or she is seeking. Pursuing a complaint procedure is simply the first procedural step that a private, paying client would be well advised to pursue without shutting off any further options. Legal aid will remain for exceptional cases—for example, where there have been delays and limitation issues have arisen. I turn to mediation versus litigation. The guidance we have issued reflects that in some cases complaints are not appropriate. Cases that can establish a point of law of public importance specifically will not need to pursue a complaint. Litigation is still available after many complaints have been pursued—for example, with police cases. We do not propose to introduce conditional fee agreements for judicial reviews, and I hope that the noble Lord is reassured by that. Finally, he has argued that the changes in these orders are so important that they ought to have been dealt with in primary legislation. The newly focused civil aid reforms have been subjected to extensive consultation. A full public consultation process took place between July and October 2004, and I have given the figures on how many responses were dealt with. All these reforms are being introduced in accordance with the legislative procedure set out in the Access to Justice Act 1999. I take the point absolutely that consultation is not the same as primary legislation, but the Government recognise the importance of these changes and have consulted very widely and fully on them. On Question, Motion agreed to.