Legal Aid

Pressure grows on Falconer over legal aid

PUBLISHED March 9, 2007

The lord chancellor is becoming a familIar face in front of the constitutional affairs select committee. but He has also performed a deft delegation by putting baroness Ashton in charge of the legal services bill, writes John Ludlow

The past few weeks have been busy for the Lord Chancellor. Apart from anything else, he has appeared before the constitutional affairs select committee not once but twice. Indeed, he is becoming quite a regular fixture.

On the first occasion he was book-ending the committee?s inquiry into the implementation of the Carter review of legal aid. He cannot have been looking forward to this event, given the widespread unpopularity of the proposals, the likely scepticism of the committee?s membership, and the unfortunate absence of his colleague and fellow enthusiast Vera Baird.

Not that this was a bad performance. Lord Falconer was his usual mixture of authority and charm, and Sir Michael Bichard and Carolyn Regan, chairman and chief executive respectively of the Legal Services Commission, were on hand to give technical and moral support. But members? eyebrows were raised on more than one occasion, such as when the witnesses dismissed any suggestion of the risk to the supplier base or the financial viability of firms.

In fact, the stickiest moment for all three came when Conservative MP Andrew Tyrie asked why the Otterburn report on the profitability of legal aid firms had not been published by the Department for Constitutional Affairs (DCA) some five months after completion.

Lord Falconer?s admission that he had not even read the report was not his finest moment, though he must be given credit for apologising for its non-appearance. Sir Michael, on the other hand, tied himself into knots trying to dismiss the report?s findings and remit, while at the same time explaining why it was commissioned in the first place. It was a civil servant performance worthy of an episode of Yes Minister.

Andrew Tyrie ended his questions with the clear accusation that the DCA had deliberately suppressed the report because ministers did not approve of the findings. Whatever the reason, it is now hoped that the report will quickly be published ? above all, it is vital that the information is available to legal aid practitioners as they consider the unified contracts that the commission has now published and which contractors are being asked to sign in April.

The committee?s report on Carter is likely to be published shortly before the Easter recess, and should make for very interesting reading. While the government is not obliged to accept all or indeed any of the committee?s recommendations, it will have to produce a considered response that answers each and every one. What with this upcoming report and the early day motion protesting against implementation of the Carter report, which has already reached 140 signatures (including 70 from Labour MPs), the government must surely find it harder and harder to defend these proposals.

The Lord Chancellor?s second appearance before the committee, a week later, was on a very different matter ? the constitutional role of the Attorney General. While the role has long been the subject of controversy, the recent furore over ?cash for peerages? has helped to highlight what many regard as the incompatibility of its dual functions of advising the government and taking legal action to safeguard the public interest.

The Lord Chancellor, of course, has already placed himself firmly in the reformist camp here, with reported criticism of Lord Goldsmith?s involvement in any decisions about prosecutions in this case. When up before the committee, however, Lord Falconer was perhaps more circumspect, though he did admit that the present arrangements were ?not sustainable?.

Given his work-load and current public visibility, the Lord Chancellor was surely glad that the job of piloting the Legal Services Bill through the Lords had been earlier handed to his junior at the DCA, Baroness Ashton of Upholland. And it has to be said that she has been doing a good job there, displaying a helpful and open manner which has gone down well with peers from all sides, as the Bill comes to the end of its committee stage.

She has certainly been making the right noises. In fact, there are few areas where she has not shown some sympathy, and she has promised to look again at a number of vital issues, including the power of the proposed legal services board to impose sanctions on the approved regulators and the criteria to be adopted when licensing alternative business structures.

None of this concern has yet been translated into concrete concessions, though most commentators seem to be optimistic about the chances of some useful government amendments at report stage, due in a matter of weeks. Of course, we will not know for certain until the amendments are actually tabled, but report in the Lords is surely the crucial stage, as it will be far harder to secure important changes when the Bill gets to the Commons.

John Ludlow is head of the Law Society?s parliamentary unit