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Legal Aid

Volume 710: debated on Monday 18 May 2009


Asked By

To ask Her Majesty’s Government whether they will maintain the rates of legal aid payments in family law cases.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so I declare an interest as a practising barrister, although not one practising family law.

My Lords, my department and the Legal Services Commission have consulted on new fees for family legal aid cases for 2010. These proposals are still being developed, and discussions continue with barristers and solicitors. For the first time, the fees will fairly reward both barristers and solicitors with the same fees for the same work. Family legal aid costs have risen unsustainably from £399 million per year to £582 million per year in the past six years. We need to control these costs in order to protect services for vulnerable clients.

My Lords, I thank the Minister. However, will he confirm that the ministry is proposing to introduce fixed advocacy fees for categories of family law cases, irrespective of their complexity? This will mean a reduction on average of 20 per cent to 30 per cent of the payment in public funding for substantive hearings in complex cases. Is the Minister aware of the very substantial concern among judges and practitioners about the implications for children and for parents because the hearings to resolve these complex and important cases—many involving the permanent separation of parents and their children—will now be argued, if these proposals are adopted, by reason of the funding position on one side by inexperienced advocates, resulting in a much greater risk of a miscarriage of justice?

My Lords, we value very much the commitment of all lawyers who work in the interests of the most vulnerable members of society who become involved in family legal proceedings. That work, which is of course paid for from the public purse, is never likely to be as financially rewarding as that for private clients, but it provides an important public service. The Legal Services Commission has received a number of very constructive and helpful responses throughout this consultation. No decisions have been made and we will be considering those responses as we develop our final proposals. It is likely that the final scheme will have more graduation and complexity, and the Legal Services Commission is working with stakeholders to develop amendments to it.

My Lords, I welcome the Minister’s comment about more graduation. However, is he aware that more than 60 per cent of legally aided barristers are women and/or BME, and that the effect of the current changes would be disproportionate on this group of people and have the real danger of leading to a reduction in diversity at the Bar?

My Lords, we know that a large number of those working in this field are women, and many are BME too. We have an independent Bar, and it is clerks in independent chambers who decide who will do what work. It is not for the Government, I am afraid, to say that women should do less family work than other pieces of work, and the same goes for BME barristers. This is important work that should be done by both men and women. The figures for earnings for barristers in this field are as follows: family barristers earn on average £44,000 a year from family legal aid work, but of course are able to increase their earnings by working for privately paying clients. In fact, research by the Family Law Bar Association shows in a recent report that the average family law barrister has a gross median annual income of £93,000.

My Lords, have not all, I repeat all, legal aid cases fallen disastrously over recent years? At present, no one but the poorest is able to go to law, to litigate. What are the Government going to do about this situation?

My Lords, we spend £2 billion per year on legal aid, which is a large amount by any standards. It is arguable that, at £1.2 billion, we spend too much on criminal legal aid. It is not arguable and absolutely clear that, at £200 million a year, we do not spend enough on social welfare law. That is the kind of law that we have to develop, particularly at a time of economic difficulty.

My Lords, is the Minister aware that, in the opinion of the Family Law Bar Association, at a time of heightened concern over child protection, the current proposals for cutting family legal aid funding from 2010 will put the most vulnerable in our society at increased risk not only of not having suitable representation, but of having no representation at all? Will the Minister ensure that the Family Law Bar Association is given a fair opportunity to respond to the Ernst & Young report when it is published before final decisions are taken?

My Lords, these proposals do not represent cuts to the legal aid budget, but are designed to reduce increasing case costs. The proposed fees are based on 2007-08 figures with reapportionments across all advocacy cases so that the same costs are payable regardless of who undertakes the work. The House should know that solicitors do the majority of family work, including, these days, some of the most complex and difficult cases of all.