Legal Aid and Civil Cost Reform

Oral Answers to Questions — Education – in the House of Commons at 4:18 pm on 15th November 2010.

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Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice 4:18 pm, 15th November 2010

With permission, Mr Speaker, I wish to announce today proposals for the reform of legal aid in England and Wales, and proposals for the reform of civil litigation funding and costs in England and Wales.

I have today laid before Parliament two documents, "Proposals for the Reform of Legal Aid in England and Wales" and "Proposals for the Reform of Civil Litigation Funding and Costs in England and Wales", which consult on these issues; copies will be available in the Vote Office and on the Ministry of Justice's website. The changes will require primary legislation and, subject to consultation, I hope to include proposals in a Bill as soon as parliamentary time allows.

I would like to apologise to the House, Mr Speaker, for the well-informed although not wholly accurate leaks of my proposals that appeared in the newspapers at the weekend, which caused me to bring forward this statement. I was hoping to abide by the convention of announcing this to Parliament, but it was obviously going to run for the week if I left it until Thursday to make the announcement.

Legal aid forms a vital part of a system of justice of which we are rightly proud. The Government strongly believe that access to justice is a hallmark of a civilised society. However, I believe that there is now a compelling case for going back to first principles in reforming legal aid. The current system bears very little resemblance to the one that was introduced in 1949. Legal aid has expanded, so much so that it is now one of the most expensive such systems in the world, costing the public purse more than £2 billion each year. It is now available for a very wide range of issues, including some that do not require any legal expertise to resolve. It cannot be right that the taxpayer is footing the bill for unnecessary court cases that would never have even reached the courtroom door, were it not for the fact that somebody else was paying.

The previous Government made many attempts to reform legal aid, conducting more than 30 consultations since 2006. However, successive changes have been of a piecemeal nature and have failed to address the underlying problems. I have gone back to basic principles to make choices about which issues are of sufficient priority to justify the use of public funds, subject to people's means and the merits of the case. I have taken into account the importance of the issue at stake, the litigant's ability to present their own case, the availability of alternative sources of funding and alternative routes to resolving the issue, as well as our domestic and international legal obligations.

My proposals have also been designed with the aim of achieving significant savings. No other Government in the world believe that the taxpayer should pay for so much legal aid and litigation as we do in the United Kingdom. We have made clear our commitment to reducing the fiscal deficit to encourage economic recovery. Last month's spending review set out the scale of the challenge. My Department's budget will be reduced by 23% over four years. Legal aid needs to make a substantial contribution to that reduction. I estimate that the proposals in the consultation paper, if implemented, will achieve savings of about £350 million in 2014-15.

I do not propose any changes to the scope of criminal legal aid. However, I propose to introduce a more targeted civil and family scheme that will discourage people from resorting to lawyers whenever they face a problem and instead encourage them to consider more suitable methods of dispute resolution. Legal aid will still routinely be available in civil and family cases where people's life or liberty is at stake, or where they are at risk of serious physical harm or immediate loss of their home. For example, I plan to retain legal aid for asylum cases, for debt and housing matters where someone's home is at immediate risk and for mental health cases. It will still be provided where people face intervention from the state in their family affairs that may result in their children being taken into care, and for cases involving domestic violence or forced marriage. I also propose that legal aid should remain available for cases where people seek to hold the state to account by judicial review and for some cases involving discrimination that are currently in scope. Legal assistance to bereaved families in inquests, including for deaths of active service personnel, will also remain in scope.

However, prioritising those areas requires that we make clear choices about the availability of legal aid in other areas. Therefore, we propose to remove from the scope of the scheme issues that are not, generally speaking, of sufficient priority to justify funding at the taxpayer's expense. I therefore propose to remove private family law cases, unless domestic violence, forced marriage or child abduction is involved. I will continue to provide funding for mediation, which can benefit those involved in family disputes by avoiding long, drawn-out and acrimonious court proceedings.

Other cases that I am proposing to remove from the scope of the civil legal aid scheme include clinical negligence, where, in many cases, alternative sources of funding are available, such as no win, no fee arrangements. The cases I am proposing to remove from scope also include education, employment, immigration, some debt and housing issues, and welfare benefits, except where there is a risk to anyone's safety or liberty, or a risk of homelessness. In many of these, the issues are not necessarily of a legal nature, but require other forms of expert advice to resolve.

I recognise that there will be some cases, within the areas of law I propose to remove from scope, that international or domestic law will require to be funded by the taxpayer. I therefore propose a new exceptional funding scheme for excluded cases. I want to ensure that those who can pay for or contribute to their legal costs do so, so that we ensure continued access to public funding in those cases that really require it for those who have little or no funds of their own. On eligibility, therefore, I propose that all clients with £1,000 or more of disposable capital should make a minimum £100 contribution to their legal costs, and that the capital of any prospective legal aid clients is taken into account when considering eligibility.

I also looked at how best to reform the way in which we pay lawyers who provide legal aid services. I want to ensure that criminal cases are resolved quickly and cost effectively, and that legal aid fee structures support that aim. In the long term, I propose to fulfil the recommendation that Lord Carter of Coles made to the previous Administration to move towards a competitive market to replace the current system of administratively set fee rates. It will not be possible, however, to fulfil that aim in the short term. I am therefore proposing some more immediate changes to the current fee structure.

I propose to ensure that in Crown court cases that could realistically have been dealt with in the magistrates courts, a single fixed fee for a guilty plea will be paid based on fee rates in the magistrates court. I also propose that the same fee should be paid in respect of a guilty plea in the Crown court regardless of the stage at which the plea is entered, and to do more to contain the costs of very high-cost criminal cases. These proposals complement other reforms to the justice system that I will be bringing forward designed to encourage cases to be brought quickly and efficiently to justice, so sparing the victim the ordeal of giving evidence in court unnecessarily, and sparing the justice system significant but avoidable costs.

It is important to strike a balance between the need to ensure that legal aid provision is innovative, efficient and good value for taxpayers' money on the one hand, and ensuring that people can continue to access legally aided services where necessary on the other. I believe that more can be done to strike the balance. I propose to reduce fees paid in civil and family cases by 10% across the board, and to make similar levels of reductions in rising experts' fees. I also propose to extend telephone access to advice through the Community Legal Advice telephone helpline, which has a high rate of public satisfaction, to help people find the easiest and most effective ways to resolve problems.

I am also consulting on proposals to make better use of alternative sources of funding for legal aid. In particular, I would welcome views on making use of the higher rates of interest generated on money invested in a pooled account used by solicitors to hold their clients' money, and on making use of a supplementary legal aid scheme. Lastly, I seek views on how to make the administration of legal aid less bureaucratic for solicitors and barristers doing legal aid work. I recognise that processes have become overly complex, and I want to do what I can to simplify these, while remaining consistent with the highest standards of accounting practice.

Furthermore, on 26 July, the Government announced their intention to consult on implementing Lord Justice Jackson's recommendations on the reform of civil litigation costs and funding arrangements. Sir Rupert Jackson's independent and comprehensive report, published in January 2010, makes a clear case that the costs in civil cases in England and Wales have become too high, and he makes a broad range of recommendations for reducing those costs. I am convinced by Sir Rupert's argument that achieving proportionate costs and promoting access to justice go hand in hand. I believe that the consultation proposals for the reform of civil litigation funding and costs presented today would help to rebalance access to justice with proportionate costs in civil cases.

In particular, Sir Rupert's proposals would reform the operation of no win, no fee conditional fee agreements. CFAs are funding agreements under which lawyers are not paid if they lose, but may charge an uplift or a success fee of up to 100% on their base costs if they win. CFAs, as they currently operate, allow claims to be brought at no financial risk to individual claimants, but the other side of that coin is that CFAs impose substantial additional costs on defendants. The Government have already accepted the recommendations of my right hon. and noble Friend, Lord Young of Graffham's recent report on health and safety and the compensation culture, entitled "Common Sense, Common Safety". His typically cogent report endorses Sir Rupert's proposals.

The key proposal is to abolish recoverability of high success fees and the associated after-the-event insurance premiums in CFA cases. Under the current regime, defendants must pay those additional costs if they lose, and they may be substantial, as the success fee may be double the base legal costs. In addition, significant costs may arise from claimants' purchase of after-the-event insurance. ATE insurance may be taken out by parties in such cases to insure against the risk of having to pay their opponent's costs and their own disbursements if they lose. We are proposing that claimants should have to pay their lawyer's success fee. They will, therefore, take an interest in controlling the costs being incurred on their behalf. That will also reduce the disproportionate costs burden on defendants.

We are also seeking views on implementing other recommendations by Sir Rupert, which are designed to balance the impact of these major changes, and in particular to assist claimants. The recommendations include a 10% increase in general damages to help the claimant to pay the success fee, and a mechanism of qualified one-way costs shifting. That would protect the vast majority of less well off claimants from having to pay a winning defendant's costs and therefore reduce the need for ATE insurance.

We also propose to allow damages-based agreements or contingency fees in litigation before the courts. These are another form of no win, no fee agreement, under which lawyers may take a proportion of the claimants' damages in fees. This would increase the funding options available to claimants.

Other proposals would further encourage parties to make and accept reasonable offers, and introduce a new test to ensure that overall costs are proportionate. We also propose to increase the modest costs that can be recovered by people who win their cases when they represent themselves without lawyers.

Taken together, my proposals complement the wider programme of reform that I will bring forward to move towards a straightforward justice system: one which is more responsive to public needs, which allows people to resolve their issues out of court using simpler, more informal remedies when appropriate, and which encourages more efficient resolution of contested cases when necessary. I commend this statement to the House.

Several hon. Members:

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Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

Order. I have been hanging on almost every word of the right hon. and learned Gentleman for at least the past 13 years, if not for some time before that. Today, his statement was a little in excess of the usual required time, and I shall allow for that, of course, in the shadow Secretary of State's response.

Photo of Sadiq Khan Sadiq Khan Shadow Lord Chancellor and Shadow Secretary of State for Justice, Shadow Lord Chancellor and Shadow Secretary of State for Justice

I am grateful to the Lord Chancellor for giving me advance sight of his statement, and I note his apology at the beginning of it. One must admire the mind-reading ability of senior journalists at The Sunday Telegraph and The Times. It was a huge discourtesy to the House, but it provided the advantage of 24 hours' notice of a statement to be made on the Floor of the House. I am grateful to both Patrick Hennessy and Simon Coates for their ability to do just that.

The Green Papers on cutting legal aid and reducing civil costs are among the most important that the Government have published to date. Legal aid is one of the pillars of the welfare state, and was set up by the Labour Government after the second world war. It plays a crucial role in tackling social exclusion, especially in hard times such as now. It ensures that everyone may have access to justice, regardless of their means. Under successive Governments, the legal aid budget has grown to the point where it now stands at more than £2 billion. That is not sustainable, especially in the current economic context.

I have six questions for the Lord Chancellor. The previous Labour Government had moved to cap the legal aid budget, and to reduce it. We also planned to turn the Legal Services Commission into an Executive agency. Do the Government have any plans to introduce legislation to achieve that aim?

In recent years, we brought the principle of fixed fees into civil and family legal aid cases, introduced means testing into magistrates and Crown courts, and on the very day that the general election was called we signed off on cuts to advocates' fees in the higher courts. We took these decisions because we recognised the need to reduce the legal aid budget. It is worth reminding the House that many of our actions were taken in the teeth of opposition, from both the legal profession and Conservative and Liberal Democrat Members. I am looking forward to hearing their contributions to this debate.

Let me be clear: had we been in government today, we, too, would have been announcing savings to the legal aid budget. That is a reality that we all have to acknowledge. The crucial questions are: where to make those savings, and how to spend the money that is left available. What equality impact assessment has the Lord Chancellor undertaken of the proposals? Our policy was-and is-to control the legal aid budget and get value for money for the taxpayer, while optimising services for people who need support the most. That is why we concentrated much of our investment on social welfare legal aid. Legal aid delivered has the power to change lives and save money. The housing possession court duty scheme, for example, saved thousands of people from repossession. It delivered a social and financial good. Are the Government committed to preserving that and similar schemes?

What balance do the Government intend to strike between civil and criminal cases? Can the Lord Chancellor explain why he is proposing more severe cuts in civil and family legal aid than in criminal legal aid? Can he say whether he agrees with the Attorney-General, who said that

"legal aid is no longer available for a large number of people who ought to be entitled to it"?

If so, in what areas does the Lord Chancellor intend to expand the provision of legal aid?

We will carefully consider the Green Paper on legal aid and the equally important paper on Lord Justice Jackson's review of civil legal aid costs before we respond in further detail. I would note, however, that Sir Rupert Jackson argued against cutting the legal aid budget, and the Lord Chancellor has decided to ignore that view. In conclusion, the basic test that we will apply in both cases is whether the proposals will deliver a saving to the public purse while ensuring that no one is denied access to justice because of their means.

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Mr Speaker, if I may, let me first respond to your comments. When I finalised the statement before coming here, I realised that it was far too long, but the fact is that the subject is complex and the leaks were quite detailed but not wholly accurate, so it was necessary to go through it with some care, for those outside this House as well as those within it. I am grateful for the fact that my shadow spokesman was given a little more warning of some of the statement.

I congratulate the right hon. Gentleman on acknowledging that Labour would have been reducing the legal aid bill as well-I came well armed with quotations from him and all his colleagues about their intention to reduce the legal aid bill. Indeed, it featured in the Labour party's manifesto at the election. It is starkly obvious that the England and Wales legal aid system has become far too expensive, and it is an obvious place to start tackling deficit problems, which has to be done on a logical basis. The Labour party had taken quite a lot of decisions and had made reductions, affecting criminal as well as civil legal aid, but the effect of what it did was largely to stabilise what had been the rapid growth of legal aid before that. Legal aid expenditure exploded in this county until about 1999. Thereafter, the Government wrestled with it, trying to bring it down, but they succeeded only in stabilising it. It is right to get legal aid expenditure back to something nearer to the norm in other democratic and common-law countries throughout the world, which we are far above at the moment.

We intend to go ahead with the last Government's proposal to make an agency of Government to replace the Legal Services Commission. That will have to feature in our legislation when it comes. We have, obviously, done an equality assessment, to have a look at the impact on various sectors of the population. Apart from the fact that the decision will obviously have an impact on the legal profession, affecting both barristers and solicitors, more importantly, one has to look at what impact it will have on gender, ethnic minorities and the poor. It is inevitably the case, of course, that litigation, and legal aid in particular, tend to be focused on the disadvantaged groups in society. Some aspects of legal aid are more resourced by women, as well as men; nevertheless, we have to be mindful of that. We have done an equality assessment, and we believe that the impact of the changes is, on balance, justified by the public interest in ensuring that the taxpayer pays only where there is a public interest in having a dispute resolved.

The right hon. Gentleman referred to the balance between civil legal aid and criminal legal aid and asked why, on this occasion at least, the scope of criminal aid is not affected. First, we already spend more on criminal than civil legal aid in this country. The reason we do so is that it is absolutely essential in the public interest to see that justice is done in every case. It is an unfortunate feature of our legal aid system-I accept it, and we always have accepted it-that we often wind up giving it to people who turn out to be rather unattractive.

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Yes, or criminals.

Before bringing the full severity of law to bear on a criminal, however, we have to make absolutely sure that he is indeed the guilty party and that he has been given every chance to claim and demonstrate his innocence to save us from making a mistake. As the liberty of the subject is at stake in all serious criminal cases, we really cannot cut back the scope of criminal legal aid.

I think the reason why we spend spectacularly more than other countries on legal advice and litigation is that we have extended the legal aid system in the past to practically every kind of civil and family issue. That is why, when it comes to cutting back the scope, the present package on which we are consulting concentrates on those areas.

Photo of Alan Beith Alan Beith Chair, Justice Committee, Chair, Liaison Committee (Commons), Chair, National Policy Statements Sub-Committee

The Justice Committee will look forward to an early session with the Lord Chancellor on the details of his proposals. Are not the issues around education, employment, debt and housing, which he says do not require special legal expertise, those on which people do need help, which they currently get through LSC contracts, citizens advice bureaux and neighbourhood law centres? From where else will they get that help in future?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

In some cases, as with housing issues where a person's home is at risk and they may lose possession, we will continue to make legal aid available. Any cases involving the risk of homelessness or loss of liberty will still be covered by legal aid. The right hon. Gentleman gave a list and I will not deal with them each in turn, but they are all addressed in other ways than through litigation. Employment issues go before a tribunal, for example, and those tribunals were originally designed precisely to avoid representation by lawyers and legalism. They were designed to be more straightforward and accessible forms of justice. Debt certainly requires advice, but much of it is not so much of a legal nature as of a practical nature-advising how to cope with negotiating with creditors and sort out the management of the debts incurred. I agree with the right hon. Gentleman that citizens advice bureaux and other such organisations are a central source of this advice. We will have to consider how far we can continue to enable such organisations to step in and give a wider range of advice, which will be needed when we stop paying people to go to lawyers all the time, as we tend to do on all these issues.

Photo of Jack Straw Jack Straw Labour, Blackburn

May I endorse what my right hon. Friend Sadiq Khan said in every particular, including with respect to the commitment in our own manifesto to cut legal aid. The Lord Chancellor will understand that my right hon. Friend cannot endorse every particular of what is being put before the House at this stage, but he and I will, of course, examine the proposals with great care.

Let me ask the right hon. and learned Gentleman some specific questions about the proposals on criminal legal aid and guilty pleas. First, I have no argument with the principle, but is he certain that he is going to structure the payment systems to avoid giving any perverse incentive to lawyers, and therefore to defendants, not to continue to plead "not guilty" all the way through to the point of trial? That is a real danger. Secondly, the right hon. and learned Gentleman says that where a case goes to the Crown court but it is judged that it should have been handled at the magistrates court, the fee will be paid only in respect of what would have been appropriate in the magistrates court. I understand that. Under the present legislation, however-I sought to change it, but the Conservatives, the Lib Dems and the other place overturned my attempt-defendants have an absolute right in either-way cases to take their case to Crown court. Unless the Lord Chancellor introduces primary legislation to change that, we are left with the odd situation in which the Legal Services Commission says that a case should not have gone to the Crown court while the defendant says that he has an absolute right to do that under statute.

Several hon. Members:

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Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons

Order. I have also been hanging on almost every word spoken by Mr Straw for the last 13 years, but now I know what is meant by those who say that lawyers are paid by the word.

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

We are working on incentives to stop them from being paid by the word outside the House, Mr Speaker.

I am grateful to Mr Straw for what he said. We both know that any responsible Government who had won the last election-any parties that had taken office-would have cut the legal aid bill. I think we should all remind ourselves of that, because, as we know, all kinds of lobbies outside who are adversely affected will start coming to us and telling us that the whole spirit of British justice is being undermined by the threat to their particular activities. We simply have to do this, and I hope that we can achieve a fair consensus on the sensible way in which to proceed.

The question of cases in which people do not plead guilty early enough is very serious. I hope we will ensure that we remove perverse incentives from the system, if they exist. The sentencing proposals that I shall present will recommend further inducements to people to plead guilty at an early stage-not only in order to save money and prevent time from being wasted, but in order to prevent victims and witnesses from fearing that they will have to attend court and give evidence, when that is actually a waste of time because the defendant will plead guilty in the end.

As for the question of either-way cases and those who opt for jury trial, I am afraid that I am one of the many Members who do not agree with the right hon. Gentleman that we should address it. I have always been a firm defender of the principle that anyone has the right to opt for jury trial, and the House has resisted any attempt to erode that right in recent years. The last Government's attempt to change the position was defeated in the House of Lords during the last Parliament, and my party was elected-as, indeed, were the Liberal Democrats-on the basis of a firm commitment to retaining it. It is not just that I do not want to throw myself on the spears; I genuinely agree with those who believe that we should not alter the current ability to opt for jury trial.

Photo of Robert Halfon Robert Halfon Conservative, Harlow

Following the decision to remove legal aid from clinical negligence cases, how will my right hon. and learned Friend ensure that the most vulnerable in such cases are protected, and are not exploited by ambulance-chasing lawyers?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

At present, about half the total number of clinical negligence cases are brought on a no win, no fee basis, and about half are brought on legal aid. No doubt some are privately financed. No win, no fee is a perfectly suitable way of proceeding in clinical negligence cases. We have decided that that-as amended by Sir Rupert Jackson-is likely to be the way in which people will proceed in future. What we have done completes a process of steadily taking legal aid out of criminal injury claims, which has been going on for some years, and I commend it as a logical next step.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee

The last Government, of course, also cut legal aid. The issue is quality, and how we focus that legal aid.

This morning, by chance, I visited our old college, where I saw the portraits of former Lord Chancellors who had attended it. When the college puts up a portrait of the current Lord Chancellor-or he may even be entitled to a mini-statue in the grounds-how would he like the epitaph to read, in relation to legal aid?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

The last Government made many changes to legal aid, which stopped the increase in spending throughout most of the past decade. I have tried to return to basic first principles, and to ask "What is legal aid for?" Let us now put in place a logical structure that is defensible and may last.

I have not the first idea what kind of statue or picture that the college that I share with the right hon. Gentleman might ever erect to me. I do not think that a mini-statue would do justice to my full stature, but I should be very flattered if anything at all were put up. However, I trust that the college will acknowledge that we have tried to create a logical and defensible system which can be afforded by a civilised democracy that needs a legal aid system.

I should probably experience more difficulty in persuading my legal friends and the legal institutions to which I belong of the wisdom of all this than in persuading my old college.

Photo of Nick de Bois Nick de Bois Conservative, Enfield North

I welcome the continuing support for asylum cases under legal aid, but I welcome even more the curbs on immigration cases under legal aid. Given that over the period of the last Parliament some £400 million was spent on combined asylum and immigration cases, can the Lord Chancellor confirm whether these proposals will make substantial reductions in that expenditure, and if so, can he give an idea of how much will be saved?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Yes, we certainly intend to confine legal aid in immigration cases to those where detention or liberty is an issue, or in respect of asylum to where there may be a duty to provide asylum to someone who has been facing persecution. Other than that, we will make considerable reductions in legal aid in immigration cases involving purely personal reasons, which can include someone who has come here on a student visa and wants to transfer to a different course. Many such cases will still be brought of course, but there is no reason why the British taxpayer should pay for legal aid. I hesitate to give an estimate off the cuff of how much we will save under that heading, and I should emphasise that all the estimates we are giving of how much we will save are, indeed, estimates, because successive Governments have found it very difficult to predict how much legal aid will actually cost. Much depends on demand in particular areas, which is often unpredictable and outside the control of the Government.

Photo of Karen Buck Karen Buck Shadow Minister (Work and Pensions)

Legal aid plays a vital function in creating a level playing field between the powerful and the powerless, and, even at a lower level, it must continue to do that. There are none so powerless as children. Will the Secretary of State clarify how he believes that children's interests should be protected, particularly in respect of special educational needs in what is an increasingly decentralised school system?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Serious issues arise for parents in educational cases, and, obviously, the interests of the children should be paramount, as they are in most other cases. The difficulty is that the problem to be resolved usually relies more on educational expertise than on the law, and too often we are financing people who argue about the process that has been followed to resolve problems, instead of finding the best way of resolving the merits of how best to teach the child, where the child should be taught, or what support the child should have. We believe it is simply not right for the taxpayer to help inject an element of what is really legalism into problems that should in the end be resolved taking into account the best interests of the child from an educational point of view. Some of these cases can be turned into enormous legal battles, which seem to me to be very far removed from the object of ensuring that a child is best educated in school.

Photo of David Nuttall David Nuttall Conservative, Bury North

One group of people my constituents in Bury North would like to see excluded from the scope of criminal legal aid are Members of Parliament. Will the Lord Chancellor ensure that, in future, legal aid is not granted to any Member of Parliament accused of wrongdoing?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Considerable adverse comment was made about the unfortunate case of our recent colleagues who succeeded in obtaining legal aid for their defence because, I think, their case was listed in a Crown court that had not yet introduced means-testing. I can assure my hon. Friend that all Crown court cases that might involve legal aid will be subject to means-testing in future, and although MPs are not paid a king's ransom, all are likely to have resources that will put them beyond the reach of full legal aid, which some of our colleagues recently obtained.

Photo of Gerald Kaufman Gerald Kaufman Labour, Manchester, Gorton

Taking into account the Lord Chancellor's wish, stated this afternoon, to encourage more efficient resolution of contested cases, will he press the Legal Services Commission to negotiate a settlement with South Manchester law centre ahead of the scheduled judicial review next month, given that the LSC lost a judicial review to the Law Society at immense public expense on the same kinds of points? It is essential, both to my constituents and more widely, that the South Manchester law centre continues to be able to help people on low means.

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I will inquire into the case that concerns the right hon. Gentleman, but I must point out that the Legal Services Commission is currently a totally independent body and is not subject to ministerial control. We propose to change its status and make it an agency, which would make it more directly accountable and would enable us to exercise more control over efficiency, but we would still proceed on the basis of having no ministerial involvement in individual applications for legal aid, as it would be quite wrong to seem to politicise individual cases. Nevertheless, I hope that the dispute is resolved rapidly and I shall make inquiries as to whether the speeding up of a resolution can be facilitated.

Photo of Tom Brake Tom Brake Liberal Democrat, Carshalton and Wallington

Following the question of the Chairman of the Justice Committee, my right hon. Friend Sir Alan Beith, and the Secretary of State's very positive response about the role of the National Association of Citizens Advice Bureaux, is the Secretary of State willing to meet me and representatives of NACAB to discuss how it can carry on its excellent work in the wider fields of welfare benefits, homelessness and debt relief?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I have been considering this issue with colleagues and I shall continue to do so because we are concerned, more widely, about the present financial crisis affecting all kinds of outside bodies such as voluntary organisations and charities in many fields. Not-for-profit bodies such as NACAB are very important in giving the kind of advice and help that we are concerned with, so we will continue to look for a solution to that problem. I certainly promise the hon. Gentleman a meeting with me or the Under-Secretary of State for Justice, my hon. Friend Mr Djanogly, who has put a great deal of work into producing this package.

Photo of Geoffrey Robinson Geoffrey Robinson Labour, Coventry North West

The Lord Chancellor will be aware that there is widespread understanding of his statement throughout the House, and his approach to this principled and rational discussion in no way undermines the continued, vital role for legal aid in our overall legal system. He must be aware of the correspondence that my office has had with his about certain law firms in Coventry that have carried out very good legal work on many good cases within the existing rules, but find it impossible to get paid for their work and are therefore opting out of the whole system of legal aid. Will he bear that issue in mind in the context of what he has said today?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I realise that we have had such problems. The LSC's accounting has been criticised and its performance has not always been what it might-hence the complaints of late payment. The commission seems to have been making great efforts to improve its performance, which we hope to maintain. Obviously, we hope that the transition to the new agency arrangements, as first proposed by the previous Government, will not interrupt that. We will continue to make sure that we do not face straightforward complaints about late payment for services that have been rendered.

Photo of David Burrowes David Burrowes Conservative, Enfield, Southgate

First, I declare an interest as a legal aid lawyer. Given your earlier comments, Mr Speaker, I hope that that will have no bearing on the length of this question. Will my right hon. and learned Friend measure the success of his proposals in relation not just to the amount of public money saved but to greater access to justice, because there is not always a need for a contested hearing?

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I am underwhelmed by this MP's decision not to press Ken Clarke further following the very unsatisfactory answer that the Minister gives to this question (see below). My understanding of Mr. Burrowes's past proclamations in this area is that...

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Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I hope to, but I hesitate to claim that we are providing greater access to justice given that we are taking quite a few things out of the scope of legal aid assistance. However, I share my hon. Friend's hope that we will encourage better resolution of disputes, of which there are plenty of examples. The president of the family division, Sir Nicholas Wall, has talked about how, in many family cases, long, adversarial conflict proves not to be the best way of resolving differences between parents and certainly is not in the children's best interests. There are plenty of other areas in which I hope definite advantage in resolving disputes will come from our proposals.

Photo of Chris Leslie Chris Leslie Shadow Minister (Treasury)

Will the Justice Secretary try to estimate the impact of the proposals on the very poorest in society, particularly in our city of Nottingham? I know of welfare advice centres and citizens advice bureaux that will be in serious jeopardy of closing because of the way that the rules he has announced are skewed towards hitting the very poorest in society when it comes to welfare advice and housing. Can he assure us that he is not abandoning the very poorest in society to a desert in which they are left with no advice and completely without representation?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I realise the need for such services and I know that citizens advice bureaux are a particularly valuable source of advice for his constituents and mine in our area of Nottingham. I should point out, however, that not every bureau provides legal advice or gets legal aid and that bureaux have been eligible for it only since 2000, and we have moved into a situation in which some have become rather dependent on it. I can only say that I shall consider the problem. Legal aid probably never was the best way of financing such organisations and my colleagues and I will have to discuss whether some necessary measure can be introduced to ensure that wider advice is available, particularly to the most vulnerable in society. We are all agreed that the taxpayer should be involved only when people cannot reasonably be expected to pay at least a modest sum to get some advice of their own.

Photo of Guy Opperman Guy Opperman Conservative, Hexham

Given the restrictions that will apply in relation to education funding, can we be clear that there will be no legal aid funding, in whatever way, for special educational needs provision or other forms of education work?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Not normally, unless in an exceptional case we are under a legal obligation to provide legal aid. Education cases include all kinds of things, such as litigation regarding exclusion of particular pupils, and whether someone has been granted a place at the school of their children's preference and so on. All such disputes can be litigated. The special educational needs cases are the most difficult. I repeat what I said before: these are educational problems, and there should be a process of resolving them that does not involve going all the way through the courts. I heard that the Supreme Court was hearing a special educational needs case. Although I am sure it came to the right decision, I am not sure whether it was the best way to resolve the problems of how to educate a particular child with particular problems.

Photo of Simon Hughes Simon Hughes Deputy Leader, Liberal Democrats

I acknowledge the rational and very thoughtful way in which the Secretary of State has approached this issue. As he seeks to deliver the aid, advice and mediation services as a network across the country, will he make sure that some sort of protection for the poor and vulnerable is in place so that they are not driven into the hands of exploitative private sector operators who will want to take their money for immigration advice and the like-advice that is often dud and costs far more than they can afford?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

I agree with the thoughts that underlie the hon. Gentleman's intervention. Let me make it clear that legal support for mediation remains important in the family field, and we believe that it is a much better way of proceeding. I will certainly bear in mind what the hon. Gentleman said about immigration advice. We have all known for many years that some of that advice, usually given by non-lawyers, to those having difficulties with the immigrations authorities is not very good and that the prices charged are rather unscrupulous. People are being taken advantage of by those who are affecting to help.

Photo of David Mowat David Mowat Conservative, Warrington South

Has consideration been given in this review to the further savings that may be achieved by addressing the structure of aspects of the legal profession? In particular, the criminal Bar enjoys a near monopoly in some courts, but still constrains new entrants into the profession in a way that keeps rates higher than they might otherwise be?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

That question was asked more frequently many years ago. The exclusive rights of audience in the higher courts were lost some years ago. There are now quite a lot of solicitor advocates. I am not sure whether the shadow spokesman, Sadiq Khan, was a solicitor advocate, but he could have been if he had wanted to be. The profession is not as closed as it used to be. Changes are about to take place on new business structures for legal practice of all kinds, which will produce a considerable transformation in some areas of legal practice. We are in a far more competitive situation than we used to be.

Photo of Gareth Johnson Gareth Johnson Conservative, Dartford

As a practising solicitor, I welcome this long-overdue full review of the legal aid system. Will my right hon. and learned Friend reassure the House that we will retain a key principle of the criminal justice system, which is that no one who faces the realistic prospect of imprisonment and who cannot themselves afford to pay will be refused legal assistance?

Photo of Kenneth Clarke Kenneth Clarke The Lord Chancellor and Secretary of State for Justice

Yes is the best and most straightforward answer to that. My hon. Friend underlines an absolutely fundamental principle of justice in any civilised society, so the answer is an emphatic affirmative.