Finlayson Christopher: Legal Services Amendment Bill (No 2) — Second Reading 
Finlayson Christopher: Legal Services Amendment Bill (No 2) — Second Reading 
[Volume:629;Page:1746] 
CHRISTOPHER FINLAYSON (National) 
: 
 I thank the member for Waitakere for her kind words and I congratulate her on the way she chaired the debates in the Justice and Electoral Committee. It was a good debate. Unfortunately the outcome is very disappointing and that is why the National Party opposes the second reading of the bill. 
Let us go back to section 3 of the principal Act. Section 3(a) provides that one of the purposes of the Act is to promote “access to justice”—a very important phrase—“by—(a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them;”. National takes issue with the Government and the minor parties on the issue of access to justice because the bill fails to deal with that fundamental issue and that is why we oppose it. 
Dr Worth has outlined our concerns with the criteria for the grant of civil and criminal legal aid and I will not address that. There are two matters I wish to address the most important one being the question of access to justice from the point of view of the proper and fair remuneration of lawyers who undertake legal aid work. The cheap shot—the easy retort—is that National is raising that question because it is concerned about the pockets of lawyers. That is not the truth and that is not the correct position. We are concerned about ensuring— 
Darren Hughes 
: Can you believe that face? 
CHRISTOPHER FINLAYSON 
: The poor old member for Otaki—the boy wonder—has to interject all the time. If he would listen instead of acting like a buffoon he might actually learn something. We are not concerned with the proper remuneration of lawyers for the sake of it; we are concerned with ensuring that lawyers are properly paid so that the right lawyers undertake this important work on behalf of those who cannot afford it. The second issue I will address if I have time is the new provisions relating to the liability of legal aided persons for costs. 
As Dr Worth said we are concerned that the Government continually refuses to address the need to look at the remuneration of lawyers. The current legal aid rates have been the same since 1996. Let us look at the position of Crown solicitors by comparison—and I would welcome Mr Fairbrother’s response to this important issue—because under the Crown solicitors’ regulations Crown solicitors who act on behalf of the police in prosecuting legally aided defendants are paid much more than those lawyers who defend legal aided defendants. What is more as Mr Fairbrother would know from his distinguished career as a criminal defence lawyer Crown prosecutors who are working in law firms not only get paid at Crown solicitor rates but they also have the advantage of the police doing much of the preparatory work including the briefing of key witnesses. 
Let us look at a comparison between the top rate paid to Crown solicitors and the top rate paid to legal aid lawyers. The top rate for Crown solicitors is $192 per hour plus GST. That sum is reviewed on a regular basis—I understand it is done every year when the Crown Law Office arranges for an expert accountant to review it so the rate is updated at least every 12 months. I ask members to compare that rate of $192 an hour plus GST with the top rate for legal aid lawyers which is $130 per hour inclusive of GST. So that means we are dealing with an effective rate of $121 an hour. 
Members should consider an incident that occurred not long ago in which there was a 3-week criminal trial. Documents were provided to counsel for the defendant who was on the legal aid rate on a disk. Once the documents were transferred from the disk into folders there were 19 folders of documents. It was a complex trial. The clerk who collated the documents was paid $151.87 per hour which was more than was paid to counsel involved. So who contributes more to justice: is it the lawyer or is it the clerk who collates the documents? There are some real anomalies and the Government wilfully refuses to address them. 
At the end of the day who suffers? Well ultimately it is the poor who need access to legal services who suffer the justice system suffers and we all suffer. Senior lawyers are not doing as much legal aid work as they were a decade ago. That means that junior and inexperienced lawyers are starting to do the work. What does that mean? That means too many lawyers are doing work where they are simply out of their depth and indeed an increasing phenomenon when trials go wrong is that defendants will appeal to the Court of Appeal and their grounds of appeal are that their lawyers were incompetent. That is happening because lawyers are out of their depth and are not doing work at the right level. 
That comes back to the point of inadequacy of remuneration. Too many trials go wrong and there are too many appeals where the primary ground of appeal is trial incompetence. The appeal system becomes clogged up with needless appeals and the criminal justice system does not function properly. So there is a false economy here on the part of the Government. It is much wiser to pay service providers more to ensure that the work is done competently by lawyers with the requisite experience—who are sufficiently experienced to do a good job—rather than simply pay this derisory rate which means that inexperienced lawyers get involved in those cases. In only the last few days we have seen examples of where judges have had to intervene and say that they are sorry but the counsel appearing before them are simply not up to the mark. 
It is a real problem—and it does raise New Zealand Bill of Rights Act issues. I would be grateful if my colleague Mr Fairbrother could perhaps address that issue because there are certain fundamental rights involved especially for persons who are charged with offences. Those persons are entitled to have the right to adequate time and facilities to prepare a defence they have the right to instruct a lawyer and they have the right to receive legal assistance without costs if the interests of justice so require and the persons do not have sufficient means. Those Bill of Rights issues do need to be addressed and I invite Mr Fairbrother to look at those very carefully. 
The first female law lord Baroness Hale recently emphasised that democracy is founded on the principle that each individual has equal value. Treating some as automatically less valuable than others not only causes them pain and distress but it also violates their dignity as human beings. People have a fundamental right to a fair trial and to access to justice. That fundamental principle is being undermined by this Government. That is reflected in this legislation because lawyers are not being properly remunerated with the consequences that I have described. 
The second point—which I will address very briefly because my time is almost up—is to express my concern as someone who has dealt with legal aided plaintiffs over the years that clause 26 which deals with the liability of legal aided persons for costs does not really address the critical issue. In effect it is virtually impossible to obtain costs from the Legal Services Agency even in circumstances where the conduct of the case by the legal aided plaintiff has been lamentable to say the least. 
It is no good to say that the cases can be struck out at an early stage because no judge ever strikes out proceedings these days. People are obliged to expend huge amounts of money defending cases—often utterly misguided cases—brought by people who are receiving legal aid. Then at the end of the day—even in the instance where the court says that if the person was not receiving legal aid the court would be prepared to award costs—the Legal Services Agency does not pay out. So clause 26 really does give me cause for concern. In the very near future I hope that a National Government will review that clause as well. But at the end of the day these are major questions of access to justice and the Government is ducking them.