Legal Services Bill [HL]

I thank the noble Lord for his kind words of welcome. In responding to the amendment, I should declare an interest both as president of the Bar Pro Bono Unit and as the chairman of the Attorney-General’s National Pro Bono Co-ordinating Committee. The committee was formed five-and-a-half years ago and brings together some of the main pro bono organisations in England and Wales, such as the Free Representation Unit and others; the professional bodies—the Bar Council, the Law Society and the Institute of Legal Executives; representatives of the voluntary advisory sector; and educational organisations. I identify those for a purpose, which I shall come to. The purpose of the committee is to help to co-ordinate and promote pro bono activities. I should like to take this opportunity to express my admiration and thanks to the many legal professionals and students and those who support them in providing free legal advice and representation. It is not a substitute for public funding for legal services, but it can be an essential adjunct to it for some who would not get through the legal system without expert help which they cannot pay for themselves. The clause proposes a change to the law which the pro bono organisations strongly support and I have long believed is necessary. It is promoted with the active support of the co-ordinating committee. I am therefore grateful to my noble friend Lady Ashton for having found the legislative vehicle to bring this before the Committee. I am also glad to have the opportunity to respond to this amendment. The genesis of Clause 185 is the practice in our courts that the unsuccessful party is often ordered to pay towards the cost of the other party, but that can apply only where the other party himself is liable to pay those costs. That is the indemnity principle. The effect is that in cases where an order for costs will be made against the losing party but the winning party is represented pro bono, no order can be made. The end result is that the person who benefits from the fact that the legal services are provided free is not the represented party but the other party, who may well be able to pay legal costs and is relieved of the burden of doing so. The purpose of the clause is to remove the anomaly but at the same time provide valuable additional funds to support pro bono work. The purpose of the clause is not that the moneys ordered go to the lawyers who have acted pro bono—they will continue to have acted free of charge—but to go to a charity prescribed by the Secretary of State, who can then effect a strategic distribution of such funds to where it would be of most use. Even before this clause was in existence, work had already begun to establish a charitable foundation whose purpose would be to receive and distribute moneys that became available to it to support organisations providing free legal advice and assistance. The Government have that body in mind as the charity to be prescribed, although no decision has been made—nor could it be until the clause became law. The amendments proposed by the noble Lord, Lord Kingsland, would direct those payments instead to a charity selected in a particular case or to the pro bono organisation that happens to be involved in the case. I am not persuaded that the approach suggested would constitute the most effective use; and, more importantly, nor is the committee to which I referred. The idea that there should be a single body arose out of consultation with the members of the pro bono co-ordinating committee and I have identified—and now it is apparent why—the organisations represented on it. The advantages of the single-body approach are that the prescribed charity is able to effect distribution of moneys in a strategic manner, taking into account national, regional and local considerations; it overcomes the point that a court is ill-equipped to decide between competing claims of charities or organisations—and it is not appropriate that it should have to do so; and the body that is prescribed will have had no role in the decision to litigate or in the litigation, which will protect it from perhaps being, as was suggested, liable for the costs of the case. Giving pro bono organisations a financial interest in the outcome of a case, which was the principal reason put forward by the noble Lord, seems to be a bad rather than a good thing. One would not want pro bono organisations to determine which cases they supported on the basis of which were liable to get them most money. There will be no added layer of bureaucracy that would be caused by the need to sift and assess additional bodies for statutory prescription. The noble Lord suggests that this might dampen the enthusiasm of pro bono providers. I am absolutely confident that it will do nothing of the sort. Pro bono work is presently undertaken by practitioners simply because the person receiving the help needs it; that is the incentive, and I do not anticipate that that will change one jot. To date, lawyers have not needed any incentive for being able to direct funds to a particular charity in order to undertake pro bono work. I emphasise that if this is carried into law, it will bring new money into pro bono organisations. This is not money that is being redirected to the charity; it is money that is simply not there at the moment. The key point is that the single charitable foundation will be able to ensure that the new money is distributed strategically. That might be done in part—it is for it to decide. It would have regard to those organisations that had, as it were, generated the funds. There is no reason why it should not do so, but that is for it to decide. Finally, I reject with as much force as I can the suggestion that somehow this involves subsidising legal aid. I have always made it very clear that neither I nor the organisations regard pro bono as a substitute for legal aid. It is an important adjunct; it will have no impact on the debate about what legal aid should be available for what work. I hope that the noble Lord sees why the single-body route is preferred, particularly by the committee to which I have drawn attention, and will feel able to withdraw the amendment.