Government must untangle CFA and human rights web
22 September 1998
MP Edward Garnier QC says the Government has its work cut out if it is to clear up the often confused and uninspiring legislation
Geoff Hoon, the Minister of State at the Lord Chancellor's Department (LCD), has probably had enough of the parliamentary questions I have asked him about legal expenses insurance. If conditional fee arrangements (CFAs) are realistically to replace legal aid they will have to be underpinned by legal expenses insurance.
The LCD's approach to this vital area of public policy has been shambolic. Very little had been done by the LCD to contact the insurance industry before Lord Irvine spoke to the Law Society conference in Cardiff last October. Not much more had been done by the time Mr Hoon came to the House of Commons in late November to set out the Government's reforms to the legal aid system.
As we progressed through the spring of this year, watching the Government twist and turn on the hook of legal aid reform, the reality of the Government's ineptitude became even clearer.
In addition to failing to attract insurers to back CFAs in any commercially viable sense with after-the-event cover, the Government seemed prepared to talk to companies which did not inspire confidence among either lawyers or the insurance industry. The political water was getting choppier and no-one in government seemed to have worked out why or what to do about it.
At the end of a bad year for the LCD, the Government decided that the only thing it could do was to push the regulations extending CFAs through the House of Commons in a committee upstairs, well away from the glare of publicity and full parliamentary scrutiny.
On Tuesday 28 July, just two days before the House rose for the summer recess, Mr Hoon read out a speech to the committee that had clearly been drafted by his civil servants. Not one of the several Labour MPs in attendance at that committee rose to speak in favour of his proposal. They will not be so silent when their constituents line up at their advice surgeries complaining that they cannot find a lawyer who can afford to take on their case or an insurer prepared to cover the risk at a premium they can afford to pay.
Where the Lord Chancellor has received deserved praise, as opposed to deserved criticism, is in regard to the Human Rights Bill. Although I was not convinced that we needed a Human Rights Bill, many judges, practitioners and academics have welcomed not only the advent of the Bill itself but also the way in which it has been drafted.
The final stages of the Bill in the Commons are likely to be completed on 21 October. It will then go back to the Lords to complete its passage through parliament before Royal Assent. Partly because the judiciary will need time to familiarise itself with the Act's provisions and implications, but also because it will form part of Mr Blair's "Millennium Celebrations", the Act is not expected to come into force until March 2000.
The Human Rights Act is designed to have a huge impact on all aspects of British law but its profoundest effect will be in criminal law and procedure.
As a civil practitioner who has just completed the Judicial Studies Board's residential course for assistant recorders, I know that criminal law and procedure is already hugely complicated and full of traps for the unwary.
We will all have a lot more work to do between now and March 2000.