Community Legal Service (Funding) (Amendment No. 2) Order 2011

My Lords, I have three categories of interest to declare. The first is professional but, unlike a number of noble Lords who have spoken, not as a member of the Bar and still less as a most distinguished judge but as a mere solicitor and now as an unpaid consultant in the firm of which I was senior partner for some 30 years. The second is a political interest. As my noble friend will recall, it was a resolution that I was responsible for that went to the Labour Party conference some three years ago, which was somewhat critical—and rightly so—of the then Government’s policies on legal aid. That led to the establishment of the committee chaired by my noble friend Lord Bach, on which he was gracious enough to invite me to participate. The third is a personal one, because the noble Baroness, Lady Deech, and I graduated at the same time all of 46 years ago from the school of jurisprudence at Oxford. This order, coming as it does shortly before the Legal Aid, Sentencing and Punishment of Offenders Bill reaches your Lordships' House, is something of a tawdry harbinger of what is very likely to be a prolonged and hard winter for access to justice. It is interesting that the young legal aid lawyers, in the briefing note that they have circulated, drew attention to the fact that the consultation that the Government entered into on their proposals to reduce these fees was very limited. They consulted only the Law Society and the Bar Council; there was no consultation with other stakeholders, such as law centres, community groups or citizens advice bureaux, or indeed any client interests. This does not seem to represent the ““no decision about me without me”” process, which was allegedly followed in terms of the health service. More importantly, that body of young legal aid lawyers has pointed out that the National Audit Office has issued a warning about the process that the Government undertook. They quote the National Audit Office as observing that there is a, "““risk to the sustainability of the supplier base, arising from the fact that remuneration for legal aid work is often unfavourably compared to other legal work. Proposals such as these””—" the ones we are debating— "““have the potential to increase the risk””." In other words, the supply side is likely to diminish. That is surely inconsistent with one of the favourite mantras of the Government—perhaps rightly so—which is to increase choice. If you reduce the supply base, you restrict choice. I have been looking into and discussing with the Newcastle Law Centre the impact of these reductions in fees on that organisation. It employs three solicitors at an average salary of around £29,000 and two qualified caseworkers at around £25,000. By no possible stretch of the imagination could these be described as fat-cat lawyers—some might regard them as potentially half-starved lawyers—but certainly they are not well paid in comparison with those in private practice or commercial organisations. Interestingly, the organisation also engages the work of eight volunteers. In the last financial year it advised 2,000 people and opened 550 active files. That is a substantial workload. As a result of the fees decision of this order, they are likely to lose some £20,000 a year. Their salaries, of course, have not been increased since 2009, the fees have not gone up since 2008 when the previous Government increased them, and we are now in a time of considerable inflation on non-salary costs. So they are not just getting a 10 per cent cut in the next year; they will be getting a 10 per cent cut on top of inflation and on top of no real increase in the past few years. In addition, the centre faces the prospective loss of £60,000 a year from the Equality and Human Rights Commission. It is not yet clear whether that funding will be continued to any extent. Perhaps the Minister will be in a position to indicate either when or what kind of decision will be made about this sort of funding. In the current financial year, the centre has also sustained a loss of £30,000 of the £95,000 grant it receives from the local authority, Newcastle City Council. The grant is now £65,000, and given the scale of the cuts in grant that the authority has received, it can by no means be assumed that the grant will be sustained at that level. One hopes that the grant will be sustained—and there are two Members of your Lordships’ House who might be arguing that case—but certainly no guarantees can be given in that respect. This is an organisation that, at the moment, is carrying out important work in the realms of asylum, immigration, consumer and employment law, and is facing a very fraught future, which will have a significant impact on the people who use its services. I repeat: there have been 2,000 advice cases and 550 active files opened in the past year. That is a significant number of people, many of whom will now be unlikely to be assisted. Moreover, demand will increase as a result of the prevailing circumstances in the economy and also because of the potential impact of the fees on private practice. I have had discussions with a leading north-east firm that is largely a legal aid firm. It depends on legal aid for about 80 per cent of its fee income. Interestingly, the salaries that are paid there are also pretty modest. The senior solicitors in their legal aid departments earn all of £40,000 a year; less experienced solicitors are on £24,000 a year; and they have a number of caseworkers on between £16,000 and £18,000 a year—again, not exceedingly generous salaries. Some of the departments are barely covering their costs at the moment and that is before this fee cut or, indeed, before taking into account rising inflation. There is also a significant question about the funding of family law, to which other noble Lords have referred. Again, I do not know whether the Minister is able to indicate either when decisions will be made about that or whether they are likely to match or differ from the current position. It is not clear whether that firm, which is a very significant player in the local legal economy, will be able to sustain the breadth of its operations. Again, if it were to reduce its staffing and coverage, that would restrict the choice of those who need legal advice. The firm which I am consulting has for some time sustained its criminal department on the basis of not covering its costs in some years and barely covering them in others. It has been able to do that only because it has been relatively buoyant in other areas. It cannot be expected that firms in the private sector will be able to continue to provide a pro bono service, even for criminal legal aid. However, if I may say so in the presence of those who have affiliations with the Bar, there and in the court system, rather than at the solicitors’ end, is probably where the savings need to be made. There is a real risk of that supply base being undermined and choice being restricted with it. The noble Earl, Lord Listowel, referred to experts. It is perfectly reasonable to look at the fees payable to experts and to develop a system in which they can perhaps be better controlled. On the other hand, expert advice is often needed. The large firm to which I referred instructs experts—for example, country experts in asylum cases or medical experts in welfare cases. Again, it is reasonable that they should be properly, if not overgenerously, remunerated because there could be a significant impact on the supply base of important people with a significant role in the administration of justice. I heard what the noble Lord, Lord Marks, said about the annual Liberal Democrat lawyers’ get-together. I hope that they will again be toasting access to justice and the legal aid system—perhaps next year, in the light of these circumstances, not with claret but more likely with bowls of thin gruel. With the combination of this measure and what is to come, we are facing a significant attack on the legal aid system. It is perhaps no coincidence that that takes place while we are also debating the future of the National Health Service. Many Members of your Lordships’ House last night paid tribute to the post-war Labour Government and the creation of the National Health Service as a great achievement in social policy and a great pillar of the welfare state. Many of us, if not all, particularly on this side of the House, think that that achievement and that pillar are threatened with being substantially undermined by the Health and Social Care Bill. We will be debating that matter at some length over the next few weeks but whether or not that be the case, it is clear that there is a real threat to the legal aid system. It is potentially facing being dismantled and access to justice, which was one of the great achievements of the post-war Labour Government—and a fundamental part of the welfare state that was then developed—is severely at risk. I do not know whether my noble friend will be dividing the House tonight—it would, perhaps, be unusual for the House to divide on a statutory instrument of this kind—but if he does not, we will, of course, return to the greater issue, the substantive issue, of which this is the trailer, when we look at the legal aid Bill. If your Lordships’ House does not significantly amend that Bill, access to justice will be significantly diminished and there will be a significant diminution in the quality and breadth of the welfare state and the society which that great post-war Government sought to create and foster. I hope that the Government will think very carefully before they do further damage to something which, as the noble Lord, Lord Marks, said, we have all been proud of for the past 60 years.