Civil Justice and Legal Aid
Mr Michael Jabez Foster (Hastings and Rye, Labour)
It might be said that I have been slow off the mark in making my first contribution. In my many years in local government, I have learnt that there is no point in simply saying how much one agrees with one's friends. I see no valid addition to the sum of human knowledge in remarking, "My colleague has said all I want to say," and saying it again. That is particularly so in this place, where the talents and advocacy of so many of my colleagues are so formidable in the forceful contributions that they make.
The other benefit has been that of hearing a gazette of the United Kingdom when, in their various maiden speeches—as happened this morning—my colleagues have told the House of the charms and beauty of the constituencies that they represent. Many have said that they represent the best or most beautiful place in Britain. While I have been in agreement with most of what they have said, on that matter they are mistaken—they must be wrong, because I represent the most charming, beautiful and historic place in all the land, Hastings and Rye.
The ancient Cinque ports of Hastings and Rye are indeed twin jewels, and their residents the most charming and talented in the land. However, the ragged trousered philanthropists still live on, albeit now voting Labour. For me, it is a special honour to represent Hastings and Rye, as it is the place of my birth and in which I have lived throughout my life. I can go so far as to say that my longest continuous absence from it was a two-week holiday. That may seem boring, but it is an incredible honour and privilege to represent one's friends, family and neighbours in this place.
Popular with visitors since 1066, this year, the town of Hastings celebrated the opening of a new shopping centre, with the particular honour of a visit from Her Majesty the Queen to open the same and also, but not more important, a visit from the Prime Minister's wife, Cherie Booth, to shop in it.
Hastings and Rye are historic towns and some history was made on 1 May, when an 18.55 per cent. swing to new Labour was the greatest in the country on existing boundaries—it might be said that I am the most unlikely lad of all to be in this place.
My immediate predecessor, Jacqui Lait, was a woman who also made history by becoming the first ever Conservative woman Whip—an achievement somewhat greater in her party than in mine. Her loyalty and commitment to her party are to be admired. When that party was unpopular, she did not seem to distance herself from it. Some might regard such loyalty as foolhardy, but to be certain where one stands is to my mind a quality to be admired and cherished.
Following the decision of the voters of Beckenham in yesterday's by-election, it might be foolhardy on my part to be too fulsome in my praise of Jacqui Lait, as I might live to regret it. She became the Member of Parliament in 1992 on the retirement of Sir Kenneth Warren, a man for whom I have enormous regard. As Chairman of the Select Committee on Trade and Industry, he was forthright and open and consequently made many friends in the constituency and in this place. I saw Sir Ken on the train a few weeks ago on the way back to Hastings, when he was good enough to give me some advice. He told me, "Do not take too much notice of the Whips." If I follow that advice, I shall no doubt learn whether it was good or ill.
Not all my predecessors were men and women of such integrity. The notorious William Long II, who represented Rye in the 12th century, caused an international scandal for Henry IV's Government, when he was found indulging part time in piracy. He was a man who in modern times would certainly have caught the eye of Nolan and would perhaps have appeared before the Select Committee on Standards and Privileges. Amazingly, perhaps setting a precedent, to the best of my knowledge he did not resign his seat.
From what I have said so far, hon. Members may be forgiven for believing that my constituency is a paradise. That is far from the truth: Hastings, or Mugsborough, as it was called in Robert Tressell's 1920s book, "The Ragged Trousered Philanthropists", is still a place of poverty and want. Our unemployment is as bad as that in inner cities: 1,000 young folk out of work and 1,000 long-term unemployed. We have an elderly population of about 34 per cent. of the electorate, many of whom are poverty stricken and excluded from the good life in their old age. Even the solicitors are poor in Hastings and Rye.
The constituency suffers above all from its lack of infrastructure. The A21, known as the snail trail, must be improved. I have in common with my recent predecessors the belief that the A21 improvements are an essential prerequisite to economic development in the constituency. Ken Warren said that in his maiden speech in 1966, and Jacqui Lait said it in hers in 1992. It would be remiss if I did not carry on the tradition, albeit in a different debate.
The Government's more positive attitude on Europe will benefit our fishermen in their plight; the new deal will give hope to the unemployed; the minimum wage will provide opportunity for those who are economically abused; and the pensions review will, I hope, give aid to the poorest of our retired residents; but we most need not handouts but handups, and the building of the road is the single most important contribution that the Government could make to the prosperity of my constituency.
My constituents expect justice from the Government, and I have every confidence that new Labour will create the climate to enable our community to achieve that, but I am concerned that the Lord Chancellor's proposals for the future of legal aid may deny many of them justice in pursuit of personal claims. I ask that further thought be given on safeguards before fundamental changes are made.
The complexity of legal remedies, increased crime and the breakdown of family life have led to an explosion in the need for legal expression, and legal aid has already been restricted. I have sympathy with the notion that the legal aid system is out of control, and it is not unreasonable that the present level of expenditure on legal aid should be held, but I believe that the current proposals are a nut to crack a sledgehammer.
My joy on 1 May at winning the Hastings and Rye seat for new Labour was equalled only by my delight that I did not have to return to my office desk and fill in another legal aid form. The bureaucratic nightmare that besets the current system wastes the resources.
I have calculated that up to a third of the time spent by a solicitor on a civil file can be on the administration of legal aid. That is a monstrous waste of professional time. There is some improvement where franchises have been granted, but the nature of auditing and the requirement under the franchise regulations to write a multiplicity of pointless letters to the client that have little to do with his claim is where the fundamental fault lies.
I am firmly of the opinion that most solicitors can and should be trusted. I know no fat cats who depend on legal aid for their living. There is no cream for legal aid: it is very much a matter of skimmed milk and water. Indeed, in the Hastings and Rye area, three or four firms—I know that there is no sympathy for this—have gone out of business, having depended essentially on legal aid.
If the current plans are implemented, many of my constituents will be dependent on pot luck rather than universal access to justice. If their case is sufficiently profitable, a solicitor will take it up on a conditional fee basis. If not, where do they go? Already many solicitors in my constituency have abandoned legal aid because of the low profitability. We could reach a stage where, as with national health service dentists, it will be increasingly difficult to find a lawyer who can afford to work the system. I accept that some alternative is required.
I know that my time is limited by reason of the early formalities in a maiden speech, but I have five bullet points to make.
First, is it not premature to consider legal aid before we see how the Woolf proposals work in practice and how savings to the cost of civil justice can be contained?
Secondly, how will people such as my constituent Mr. Brown, who has a good claim for medical negligence worth about £8,000, finance the often substantial disbursements required by medical negligence claims—if he can find a solicitor who would work for a conditional fee at such a level? Few solicitors, as I know from my friends and colleagues in the past, will come up front with the disbursements; they cannot afford to, especially in medical negligence cases, in which the fees are substantial. Will there be some form of limited legal aid in such cases to cover at least the disbursements, or even a loans scheme such as the one suggested for students? Even if a solicitor is prepared to fund his work on a conditional fee basis, a method of funding the disbursements must be provided. My hon. Friend the Minister mentioned the disproportionate and substantial cost of medical negligence claims, but how much of those costs are solicitors' fees and how much medical disbursements?
Thirdly, if the balance of probability—that is, 51 per cent.—is the civil justice test, what is the justification for imposing a merits test of 75 per cent. before granting legal aid? To impose such a test suggests arithmetically that 50 per cent. of those who might succeed in litigation will be denied the opportunity of leaving first base because of their poverty. That is selective justice. In cases of professional negligence especially, the 75 per cent. test will often not be met and justice will be denied.
Fourthly, another constituent, Mrs. Fox, won her case at an industrial tribunal and now wishes to enforce it, but cannot afford the court fee. I was delighted to hear this morning that the Minister will exempt such folk from the barrier of fees from 1 December. That is a step forward indeed.
Fifthly, what will be the position if "costs orders" insurance is not available or affordable to litigants who do not have the protection of legal aid? I accept in principle that there is no reason why litigants should be protected against claims for costs if they lose, but what if an application is made for security for costs? Would that security be given by the Legal Aid Board, or what?
I am concerned about the Lord Chancellor's proposal that the merits test should be used as a tool to regulate the pressure on the legal aid budget. That is rationed justice. It is acceptable to determine merits tests as to whether legal aid will or will not be granted, but to say one day that it is available and the next, in the same circumstances, that it is not, suggests that access to justice will become a lottery. Even the NHS has a waiting list.
The Lord Chancellor said last year on cost capping that, if imposed,
Legal aid would cease to be a benefit for which a qualifying individual is entitled. It would in practice become a discretionary benefit available at bureaucratic disposal, a benefit which would have to be disallowed when the money ran out.
He was right.
Happily, the Government's proposals are only proposals. I hope that the concerns expressed, not only by the legal profession but by a wide range of those involved in poverty and consumer affairs, will be heeded before the proposals are set in stone.