Special report

Geoff Hoon, Lord Irvines deputy, says the Government is asking hard questions about the necessity of assisting the less well-off in paying conditional fees insurance. Geoff Hoon is Parliamentary Secretary in the Lord Chancellor's Department. Access to justice is a crucial challenge for the Government. We face two issues: how to get legal help and advice to those on middle incomes who are excluded from legal aid and cannot afford the costs and risks of lawyers out of their own pockets; and how to create a legal aid scheme that meets the needs of the less well-off.

The way forward on the first is clear. It is to extend conditional fee agreements to all civil litigation other than family cases, and to implement Lord Woolfs proposals for bringing down the costs and risks of civil litigation. These will bring a revolution and allow those on middle incomes wide and affordable access to the law for the first time.

Tackling the second challenge involves a similar strategy. We will extend legal aid to the not-for-profit sector. We need to recognise that lawyers and courts are often not the most appropriate solution to problems or disputes. Sometimes timely advice from a non-legal specialist may be better than a lawyer pursuing a legal remedy. A mediator seeking to promote an agreement, rather than a court deciding who is to win, may have better results. Sometimes, people simply need advice about the various options open to them. For that reason, we are already expanding the legal aid scheme to specialist advice agencies and mediators in family cases, and may go wider still once we have better control of legal aid.

That broadening of the scope of the scheme is made possible by a second reform: a move towards buying services in advance under contracts with advice workers, lawyers and others. Contracting will allow us to deal only with those suppliers who offer a good deal and that deal will require high standards and competitive prices, so that we get the most we can, pound for pound, out of the limited money available.

To this power to buy the services that people need, we are adding the means to find out what that need is and how best to meet it. We have just launched the first Regional Legal Services Committee. More will follow. The job of those committees will be to liaise locally, identifying priority needs and ways of meeting them. With that information, and with guidance from the Government about national priorities, the Legal Aid Board will make contracts as appropriate.

Contracting will make it possible to decide each year how much to spend on legal aid. Each year the question will be how to use the available money to add to the contracts already in place. Thus, while some contracts will be running down, others will be starting up or in mid-flow. Lawyers will receive a steady income flow under their contracts.

To stay solvent, they must match the pace at which they take on cases with their income stream from the contract. This will enable us to provide a steady level of services across the country, targeted on priority cases. There will be no question of the money running out at the end of the year, either nationally or locally. There will be no question of a crude annual cap.

Finally, we need to refocus legal aid on social welfare and matters of public interest. Yet there is no new money. Of course, contracting and extending legal aid to new types of service can be expected in the longer term to give us efficiency savings. We doubt, however, that that will be enough. We need, in effect, to ask hard questions about what legal aid should cover and what we can expect people and their lawyers to finance for themselves.

As an incoming Government, we were struck by that fact that some solicitors have always worked speculatively on what amounts to a no-win, no-fee basis. We understand that some of those who are instructed on behalf of Trade Union members or through legal expenses insurers as a matter of practice do not send in a bill if they lose.

More recently we have seen the development of conditional fee agreements no-win, no-fee. In these cases the lawyers charge a success fee, if they win, which their client pays out of their damages. Indications are that this, too, is a flourishing way of funding litigation.

That situation has led us to question how far such arrangements might replace legal aid. The major objections we have received are that poor people may not be able to afford either the insurance against the risk of having to pay the other sides costs or the investigations that may need to be undertaken to decide whether the case is a good bet for the solicitor.

Our first response is to ask why the solicitors should not bear the insurance or investigation costs and factor them into the prices that they charge in their businesses generally or recover when they litigate successfully. Before we decide whether continuing subsidy is needed in apparently difficult cases, we will need to be convinced that the risk should be borne by the taxpayer rather than by those who make a profit from the cases.

One advantage of conditional fee agreements over legal aid is that, because lawyers are risking their own time and money, weak cases will be discouraged, and only cases with a real chance of success will be brought. Lawyers will be motivated to do their very best. They will also protect unaided defendants who, because they cannot recover their costs in legal aided cases, often have to give into what can be seen as weak but blackmailing claims.

We will be consulting widely on how best to achieve the objectives set out above. But the professions and the Government must accept from the outset that this is not easy policy: there are no easy answers.