Finlayson Christopher: Debate on Crown Entities Public Organisations and State Enterprises — In Committee 
Finlayson Christopher: Debate on Crown Entities Public Organisations and State Enterprises — In Committee 
[Volume:639;Page:9020] 
CHRISTOPHER FINLAYSON (National) 
: 
 There is often a lot of hyperbole in this House but I think it is fair to say—and it is certainly not hyperbole to do so—that the Justice and Electoral Committee’s report on the Legal Services Agency is very serious indeed and that the agency is simply not working. Its financial review revealed a number of serious problems. I will run through some of the major ones then focus on one. The first problem is the concern expressed by the committee that legal aid forms are if not unintelligible then certainly far too prolix. There are some real concerns about the supply and quality of legal aid providers. There are some very serious concerns about the closure of community law centres. There are some concerns about the commitment of the agency to the Treaty of Waitangi and the work it is doing there. There are some very real concerns about the problem I intend to focus some time on: the assessment of cases. 
In the last year a number of totally unmerited cases have caused a great deal of harm and concern to certain defendants. During the course of the hearing of the select committee I mentioned one case that had been commenced against an elderly couple. The wife had multiple sclerosis. The husband had given up work in 2002 to help his wife and they were sued. What is more the plaintiff knew about the couple’s situation. The plaintiff was granted legal aid and commenced what could be described only as a hare-brained proceeding. It was struck out in the District Court and Judge Crosbie said the case was so untenable that it could not possibly succeed. He said he struggled to see how any self-respecting lawyer could plead such junk against the defendants. He said the case lacked common sense and balance. Then the case went to the High Court on appeal—again funded by legal aid—and the High Court judge was of the same view. He said the plaintiff’s claim to a constructive trust in respect of the property owned by the second respondents had no merit whatsoever. 
The claim had no merit whatsoever so at the end of it there was an application under section 41 of the Legal Services Act that the successful opponents of the aided person be granted their costs by the Legal Services Agency. That application was filed in 2005 and it was dealt with. Unfortunately it took 2 years for the matter to be considered by the agency and it was concluded by the agency only after a hearing of the select committee into the agency. There is a happy ending to this sorry tale. In the last few days the agency has provided payment of the full amount claimed by the second respondents in that case. They were paid the full amount but there was no apology and no reasons were given by the agency. 
The fact of the matter is that the agency was wrong to fund that particular plaintiff. The agency did not want to face a full review as that would have resulted in the decision being reduced to writing and being available as a precedent for other claimants. The agency had a particularly hard time at the select committee hearing. It had no grounds not to pay the second respondents and paying them was the right thing to do. So after 2 years during which time the lady concerned had become quite ill as a result of her problems with multiple sclerosis I am pleased to say that the agency did the right thing. Just in the last few days I have learned that it has paid the respondents in full. 
That is one case where the agency did the right thing. What about the other cases where people have had to confront mad legal aid - funded cases and expend huge sums of money? These are very serious matters. These are questions of justice and something needs to be done to make sure that the agency has people who are capable of analysing cases at the very start so that some of those cases are not legally aided. I suggest that the Minister read paragraph 10 of the select committee’s report carefully because it said the committee was very concerned about this matter and added: “Such cases are expensive and time-consuming for the legal aid system the courts and opposing parties.” I would like the Minister to explain what he proposes to do about this particular matter because these are not anything other than serious questions of justice. 
In all litigation there are three interests at stake. There is the undoubted right of the plaintiff to commence his or her proceeding and if indigent he or she is entitled subject to the criteria of the Act to be legally aided. But there are other rights at stake as well. There is the public interest in the swift and economical conduct of litigation particularly where as in the case I have mentioned a person is being assisted to conduct that litigation because he or she qualifies for legal aid. The other interest is the right of the defendant. If someone is legally aided it certainly behoves the lawyer for that person to conduct sensible litigation expeditiously and economically. It is a matter of grave concern—and it certainly was to the select committee—that that kind of abuse occurs. 
So I think some questions need to be answered by the Minister. He should look at paragraph 26 of the select committee’s report and I invite his comment on it. Has he ever seen an agency whilst he has been a Minister—or indeed since he has been in this House—receive such a caning? The report states: “We consider that the Legal Services Agency needs to improve its performance significantly in a number of key areas. We are concerned that several issues we raise in this report suggest that the agency is not performing adequately. We are particularly concerned that many of these issues appear to be ongoing.” The committee has sent a warning to the agency that: “We intend to monitor this situation closely.” 
This afternoon we dealt with three bills and comments were made by Labour members about the cooperative nature of the work conducted by the Justice and Electoral Committee. That was quite right not only in relation to those three bills but also in relation to this financial review. I think it is fair to say that the Labour members on the committee were also concerned about the quality of this particular agency. Members will note that there is no dissenting report. These are matters of justice and the issue comes back to what we said when we were debating the amendment legislation last year: eligibility for legal aid has been widened by this Government so that over a million people are now eligible in this country. But the agency has not delivered. It is not delivering. It is too bureaucratic it buries people in paper and in process it does not cut to the chase and it does not provide a very good service at all. It is underfunded which obviously cannot help the agency. I do understand in fairness to the agency that it is underfunded and has to deal with minimal funds to the best extent that it can. 
But it is not good enough for an agency such as this to have a report of such seriousness written about it. I went through the other reports and I did not see another review of a Crown entity that was as critical as the select committee’s report on this agency. So the response of the Minister in the chair the Hon Mark Burton should be forthcoming on that. These are serious matters of justice and competency and I fear that unless a strong lead is taken by the Minister this organisation will continue to drift and a similar sort of financial review will be conducted next year. I warn the Minister that as I said a few minutes ago the select committee is seriously concerned about this body. It intends to monitor the situation very closely. But no organisation and no Minister responsible for an organisation such as this can be proud of a report that repeats almost like a litany that it is concerned about financial management legal aid forms monitoring the availability of legal aid in rural areas the closure of community law centres and legal aid providers and that it is very concerned about unmeritorious cases. What are the answers?