HL Deb 09 June 1986 vol 476 cc9-23

3.2 p.m.

The Lord Chancellor (Lord Hailsham of Saint Marylebone)

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—( The Lord Chancellor.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clauses 1 to 63 agreed to.

Clause 64 [Family proceedings rules]:

Lord Elwyn-Jones moved Amendment No. 1:

Page 38, line 30, leave out from ("rules") to end of line 2 on page 39.

The noble and learned Lord said: I think it has been agreed that it would be convenient for us to take together Amendments Nos. 1 and 2 and the Motion relating to clause stand part in the name of the noble Lord, Lord Meston. They all arise out of the same matter—namely, Clause 64 of the Bill.

We had a preliminary run, if that is the right way of describing the matter, over this ground at Second Reading of the Bill. There it became apparent that Clause 64 stood out like the proverbial sore thumb in a Bill which was otherwise substantially approved in all parts of the Chamber, giving effect as it does to three admirable reports of the Law Commission. Clause 64 plays no part in those reports. It arises from the intention to reduce legal aid costs in a way which I submit is arbitrary and likely to cause more damage than benefit.

I made some contribution towards reducing the cost of legal aid in the matrimonial field when the Government of which I was a member introduced legislation to simplify undefended divorce cases; and, indeed, save where issues arise in regard to custody and access to children and financial provisions, courts are now enabled to grant decrees of divorce without the need of any legal representation at all. That enabled useful savings to be made which were used in the legal field in other directions.

Clause 64 seeks to take the matter of the saving of legal aid costs in two ways. First of all, as the Committee will see from Clause 64(1)(a), the matrimonial rule committee, may amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provision made by the rules". It is a remarkable power given to a rule committee. There is one precedent in a less significant field for this to be done, but this power to amend the law or repeal previous Acts of Parliament in the highly sensitive field of family and domestic relations is one which I submit should be resisted.

The alteration of the law in that important field should be a matter for Parliament. Such power should not be given to a rule committee. It is suggested by those who are afeared by what is proposed that it might, for instance, encourage and enable the rule committee to determine that matrimonial cases should be heard by divorce registrars, or embark within the wide ambit of the power given by Clause 64(1)(a) to the relevant rule committee to amend the relevant law. That is our first ground of objection which is embodied in the amendments and will no doubt be referred to by the noble Lord, Lord Meston, in his speech on the clause as a whole.

The second significant feature is in Clause 64(1)(b), which provides that the rules, so far as relating to the costs of proceedings, may make different provision for different cases or descriptions of cases, for different circumstances or for different areas". Here, again, there is a considerable power: what principles are to apply in regard to the decision with regard to different cases or, indeed, different areas. That does not appear from the clause although it may well be said that those matters will be clarified in the rules in due course. But they certainly do not appear on the face of the clause as it stands.

The matter which has raised considerable concern is that it will be possible if these provisions are carried out to have a different method of remuneration and of costing in regard to legal aid cases from that which applies in cases which are privately financed. Here again, we come up against a risk that was ventilated by several noble and learned Lords and by others in last Wednesday's debate on criminal legal aid; that of creating a two-tier profession—those who will and those who will not take on legal aid work. As my noble friend Lord Mishcon said in the Second Reading debate, more law firms will be likely to close their legal aid departments if there are further reductions in legal aid cost provisions, because they simply cannot keep them going.

The method proposed in Clause 64 is to ask the Matrimonial Causes Rule Committee to prescribe fixed rates of payment for work done by solicitors and barristers in respect of legal aid cases. It therefore gives the rule committee the power to discriminate between legally-aided and privately-funded work. That would make a significant change to the present provisions. At the present time taxing masters and registrars fix fair remuneration for the payment of lawyers' fees in the light of local conditions and the circumstances of the case. Good work is rewarded and bad work is penalised. I submit that that system has worked pretty well since legal aid was introduced.

However, the system of fixed rates that is now proposed by this clause, by which mechanical assessment of hours worked will replace qualitative assessment of the work done, will, it is feared, reduce the quality of the service provided and discourage efficiency. There will be a risk of a first-class service for privately-financed litigation and of a second-class service for those who proceed on legal aid. I submit that that would be contrary to the basic principle of the legal aid scheme. I hope therefore that in the interval since we last discussed this matter, when it fell to the noble and learned Lord the Lord Advocate to deal with the question, perhaps the noble and learned Lord, in the light of the observations made on that occasion, will be able to take a different view which is taken seriously by both branches of the legal profession. I beg to move.

3.15 p.m.

Lord Campbell of Alloway

The noble and learned Lord, Lord Elwyn-Jones, has referred to this clause as the proverbial sore thumb, and perhaps some Members of the Committee will regard it as an unwelcome appendix; indeed, at this particular time as a grumbling appendix. It is one that, in accordance with the broad proposal of the amendment, ought now to be excised because it affects the question of reasonable remuneration for work done by the Bar and solicitors under legal aid, albeit in this instance in family proceedings. The question is, in its broadest form, sub-judice. In relation to criminal legal aid, much the same basic considerations must apply.

Surely there is a case, as the noble and learned Lord, Lord Elwyn-Jones, has suggested on this occasion, as at Second Reading, for dealing with this whole matter by specific legislation, by amendment to the Legal Aid Act. Surely it is not appropriate to introduce this question, albeit part of a much larger question, and one that in no way impinges upon the principles of the Bill, and which is wholly devoid of any political significance, as an appendix to this Bill. In the long run can there be any doubt that one day, when the present unfortunate dispute has been resolved—and it will be resolved—a broad, independent body (call it what you may) will in effect deal with the whole subject of reasonable remuneration as regards legal aid?

Therefore, as regards a concept that was as I understood it—and if I am wrong, I will be corrected by my noble and learned friend the Lord Chancellor—half-welcomed by the noble and learned Lord when he wound up in that interesting debate on the amendment of the noble Lord, Lord Benson, and as regards this particular Bill, is it necessary and is it sensible that we should deal with that aspect in the way that is proposed at this time?

When the Bill was before the House on Second Reading my noble and learned friend the Lord Chancellor, in moving the Second Reading, said that: Clause 64 enlarges the rule-making powers of the Matrimonial Causes Rule Committee. A greater degree of flexibility … to distinguish between different cases and different circumstances will in future be possible".—[Official Report, 22/4/86; col. 1083.] With the greatest respect to my noble and learned friend, although that may be the intention, one wonders whether it could in practice ever be the situation.

So far as that relates to Clause 64(1)(a), it is of course possible and wholly acceptable. But in so far as it could give rise to the disparity of treatment to which the noble and learned Lord, Lord Elwyn-Jones, has referred, surely it is not acceptable. The answer to the first question that I raised on Second Reading, as to whether there would be disparity between privately-funded work and legal aid work, when dealt with by my noble and learned friend Lord Cameron of Lochbroom, was, as I understood it, that, yes, there is to be disparity. On the second question—which was, if so, what machinery would be established to ensure that expectation of reasonable remuneration would be fulfilled?—the answer, as I understood it, was that no machinery was contemplated. On the third question that I raised, as to whether it was right, if the fundamental principle of legal aid were to be abrogated, that it should be left to a rule-making body as distinct from Parliament, the answer appeared to be that, yes, it was appropriate that it should be left to a rule-making body.

This morning it so happens that I received another letter from the Bristol Law Society, to which I referred on Second Reading, expressing its continuing and grave concern. It took the view that any facility to depart from fixed rates or scales on taxation, although on paper attractive, would really be wholly unworkable in practice and wholly unrealistic. In practice the fixed scale becomes the fee, which is not related to the type of work done or the worth of the work. Again, the view is taken that this is really a matter for Parliament. In all those circumstances one wonders whether it would not be possible to allow this Bill to go forward in its excellent and wholly uncontroversial form without introducing this element which, at this time, raises all sorts of questions which some Members of the Committee may think are better left for resolution in consultation and in a more leisurely atmosphere.

Lord Denning

I am against this amendment. Like other noble Lords, I have received communications from law societies. I think that their fears are not well founded. The important words in the clause are: may amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts". I repeat, "relating to the practice and procedure". We have often had to consider those words. The important thing is that it does not affect the rights of the parties. Practice and procedure are for the lawyers. We have the Rules of the Supreme Court, and so on. We have rule committees to draw them up and to vary them. They cannot affect the rights of the parties. It is very sensible to have a rule-making body to deal with practice and procedure in order to keep it up to date when any faults or flaws arise.

It is right that there should be different costs available by rules in different descriptions of cases. As to legal aid, we must be very careful to see how it is restricted, with power to make different provisions according to whether or not any of the parties are entitled to legal aid. That is only the procedure in that regard. It cannot affect the rights of the parties. I am interested to note in the latest communication I received that the Law Society consulted leading counsel, who advised that Clause 64(2) is unlikely to empower the rule committee to discriminate against legal aid by prescribing rates of payment for legal aid work or permit the committee to have regard to the Government's public expenditure policy when regulating costs. I think that is quite right. I agree with that leading counsel. I think the fears are misconceived and I see no cause for the amendment.

Lord Elwyn-Jones

Perhaps the noble and learned Lord will permit me to intervene. Has he applied his distinguished mind to the provisions of Clause 64(1)(b), which enable the rule committee, in respect of the costs of proceedings, to make different provision for different cases, or descriptions of cases, or for different circumstances, or different areas? Surely the individual litigant will be directly affected by decisions of that kind.

Lord Denning

We have codes A, B, C and D according to the amount involved, and so on. No; it is good that the rule committee should regulate matters of that kind.

Lord Meston

I support this amendment. On Second Reading noble Lords on all sides were unhappy about Clause 64 as a whole. Their dislike of subsection (1)(a) was on constitutional grounds in that it would allow a rule committee to alter any statutory legislation including, as I understood it, the schedule to the Legal Aid Act dealing with remuneration. I am happy to be told by the noble and learned Lord, Lord Denning, that I may be wrong on that, but I would certainly need to think about it. Likewise there was, and is, dislike of subsection (1)(b) and subsection (2). I shall try not to repeat the arguments at length. Indeed, many of them were echoed very authoritatively in the debate last Wednesday on criminal legal aid.

Family law work is important. Much of it is concerned with the protection and future welfare of children afflicted by the breakdown of marriage. Much of it is concerned with fairly reallocating limited capital and income resources following the breakdown of marriage. In family law work there are not always easy answers. What is best for a child during and after divorce is seldom straightforward. What is a fair allocation of finance and property depends on a host of sometimes competing factors which have to be considered and assessed. Thorough preparation by the lawyers, essential in all litigation, is vital and can save time and money in the long run. It is vital if a case is to be conducted efficiently. It is vital if the case is to be settled fairly without the necessity for a court hearing.

For years, private practitioners have taken on legal aid work on the basis of fair and reasonable remuneration, independently assessed by taxation. In the High Court, of course, it is reduced to 90 per cent. of the fair and reasonable remuneration—the 10 per cent. difference often being regarded as the legal profession's contribution to the system or a discount for the certainty of receipt. But the spirit and intention of the legal aid scheme has always been to ensure that, so far as possible, the client should not be at a disadvantage through lack of funds and that there should he no distinction between the private client and the legally aided client.

Clause 64 is intended to pave the way for fixed standardised fees. In so doing, it undermines the spirit and intention of the legal aid scheme. It overtly distinguishes between the legally aided client and the non-legally aided client. The practical consequences are that lawyers who can afford to do so will give up legal aid work. Alternatively, the work will be increasingly delegated to inexperienced or unqualified practitioners. The temptation to cut corners will grow and legal aid will come to be seen as second-rate work for second-rate lawyers.

Private solicitors in poorer areas, already under pressure in respect of their conveyancing work which provided a measure of subsidisation to litigation, will move to richer pastures. The burden will fall on the sparse and hard-pressed law centres or on the Citizens Advice Bureaux. One consequence I had in mind on Second Reading (and I respectfully remind the Committee of it) is this. A privately paying client who runs out of funds half-way through litigation will find himself being told by his solicitor, "I am sorry, we do not do legal aid work. You are entitled to legal aid but you cannot continue to pay our bills and you must find another solicitor". Therefore the client will have to go to another solicitor who does accept legally aided work. Much of the work will have to be duplicated and the other party to the procedures will probably suffer delays as a result.

The Bar recognises the alarm at the increase in the matrimonial legal aid costs. The Bar recognises that any Lord Chancellor would be anxious to control it. The courts and the responsible practitioners in this area have become more and more cost-conscious. There is always a pressure for the taxpayers' sake and for the clients' sake to save them the cost and the bitterness of litigation. I remind the Committee that this is an area where legal aid is not free legal aid. The client often has to make a contribution and the balance of the costs is often clawed back by the procedure known as the Law Society's statutory charge.

The Bar and, if I may say so, especially the Family Law Bar Association, makes constant suggestions to improve procedures, not least in the context of the Booth Committee's proposals which have recently been published. The Bar, as the noble and learned Lord the Lord Chancellor will know from his officials, has been engaged in constructive negotiations as to matrimonial legal aid fees, subject to its underlying dislike of the principle of a standardised fee. I suggest that standardisation is quite inappropriate for the variety of work in this area of the law. We all want to save costs, but Clause 64 is not the route, and I support this amendment.

3.30 p.m.

The Lord Chancellor

Perhaps I may intervene at this point. I really think that some degree of reality ought to be brought into this debate. Every speaker who has supported this amendment so far has wholly misunderstood the current position and the purpose of Clause 64 and its effect. I know that the noble and learned Lord, Lord Elwyn-Jones, is aware of how much I respect and like him and my words are not intended in any way to wound, but he spoke, as I think did three noble Lords on Second Reading, as if the taxing authority at the moment can and ought to fix the amount which is allowed on taxation. That is wholly wrong.

I do not know whether the noble and learned Lord has looked recently at the existing Matrimonial Causes (Costs) Rules. They are contained in rules of 1979. I do not know whether the noble Lord, Lord Meston, who is usually so well informed on this subject, has ever read these rules, or whether my noble friend Lord Campbell of Alloway has read them, but in fact they provide a fixed set of costs for all matrimonial work.

I shall not read all of the paragraph, but on a taxation of costs for matrimonial proceedings in the High Court—and the Committee may take it from me that there are similar rules for the county court—it says that the amounts to be allowed shall be in accordance with column 1 of the matrimonial scale. If one turns to the matrimonial scale which is contained in the appendix to Rule 6, one will find that in column 1 all the amounts are precisely laid down by the schedule. The Committee may be interested to read some of them. For instance, in regard to counsel, counsel's fees in connection with proceedings in a divorce in the county court may be £5.50 to £30. There are similarly low fees available in the High Court.

The curious result has been that in the seven years which have passed since 1979 those fixed, prescribed scales have become wholly obsolete because they are so low. The taxing authority has had to disregard them, not because they are not here but because they are wholly obsolete. One of the curious by-products of this situation is that the solicitors' profession, if the noble Lord, Lord Meston, is to be believed, has forgotten that the fees are all laid down on a fixed scale already and that the only reason that they are disregarded now is that they are so low. The profession seems to think, as the noble and learned Lord, Lord Elwyn-Jones, said, that ever since legal aid has been instituted it has worked on the principle that the taxing authority should prescribe the actual costs to be allowed on merit alone.

I am sorry to take some little time on this matter, but it is important that people should understand what has happened. The original rules contained an escape clause. It was intended always to be exceptional and I think the rules provided originally that the escape clause should allow the taxing authority to reduce below the fixed amount or exceed the fixed amount; and because the scales laid down in the existing rules are so utterly unrealistic, in practice what has happened over the intervening seven years (which is quite a short time) is that the profession has quietly assumed that ever since the legal aid system was introduced there has been a purely discretionary right for the taxing authority to prescribe what it thinks suitable and that it has always existed and has worked well.

Once you have said that, it is obvious that it is totally wrong to suppose that one can keep in existence rules which state that there should be a prescribed scale that may occasionally be departed from and in fact to allow departure from it on every single occasion, which is what is happening now. That is the first point I want to make.

The second point is that the prescribed scales are unrealistic for a totally different reason: they apply right across the board in all parts of the country, strange as it may seem. This again is wholly unrealistic. It means that in matrimonial work if there are two unassisted litigants—which is very much the exception—they can each appoint two or three counsel; and they then find themselves limited by this extraordinary prescribed scale. What has happened is something quite different from what was described at the beginning. As some members of the Committee will know, over the field of litigation it has been a constant source of complaint (I think until I undertook certain reforms which it will be necessary to explain) that when a party wins a case—and I am talking now about unassisted parties and assisted parties if they win—he or she receives only party and party costs, as they have been called since I was a child, and that means that he or she receives only shall we say about two-thirds of what has actually been spent, and perhaps he or she is lucky to get that.

The Rule Committee of the Supreme Court, which is not the same as the committee that we are talking about here, decided that we would destroy the four existing bases on which costs would be taxed; namely, party and party, common fund, trustee, solicitor and own client. We decided that we would substitute two simple bases: the standard basis, which is virtually the old common fund basis and which is a great deal more generous than party and party; and the indemnity basis, which is the highest basis of all and corresponds to the solicitor and own client basis. This proposal passed through the Rule Committee of the Supreme Court without a murmur, and the Rule Committee of the Supreme Court is a highly independent body, as is the Matrimonial Rules Committee. In addition to myself, it consists of the Lord Chief Justice, the Master of the Rolls, the President of the Family Division, the Vice-Chancellor, Lord Justice Dillon, Mr. Justice Hirst, Mr. Justice Steyn, Mr. Cherryman, QC, Mr. Aikens, barrister, and Messrs Howells and Crush, members of the solicitors' profession. That was a wholly beneficial reform that was introduced into all the Supreme Court actions except matrimonial actions.

Why not matrimonial? The answer is because the Rule Committee of the Supreme Court does not have jurisdiction over matrimonial work. The first reason why it is necessary to have Clause 64 in this Bill is that it is badly needed in order that matrimonial work, from having the status of a poor relation, a second-class citizen, can be brought into line with the rest of the Supreme Court, and of course that involves changes to matrimonial work in the county court also. In other words, if this clause is not allowed into the Bill, matrimonial work will continue to attract party and party costs, the old and obsolete party and party costs, if the client wins; and it will be constrained to retain a system which is wholly obsolete and which quite rightly has been changed for the whole of the rest of the Supreme Court. Is not that rather funny? We did not hear a word about it in any of the speeches.

Let us take that a little further before I come down to some of the arguments. First of all, I would submit that where you have two unassisted clients (which is a very rare case), it is wholly wrong to try to prescribe fees for them at all, as the existing rules do. It is out of place. If they choose to go to two or three counsel each, they can do so. If one wins, taxation will take place on the standard basis—the old common fund basis.

Let us suppose that an assisted client, which is the common case where a wife petitioner is petitioning, succeeds against an unassisted husband, either originally or, as is much more common nowadays, on access, custody or maintenance. If the Bill does not contain Clause 64, that successful litigant will only be able to get out of the unassisted and losing party the old party-and-party costs, because the new basis will not he applicable. The legal aid fund will be the poorer; so, I suppose, would be the practitioner who worked under the legal aid fund. If this clause is in, costs would be charged on the new standard basis; namely, the old common fund basis.

Or suppose we get a case where an unassisted litigant is taxing his own bill of costs against his own solicitor and counsel. That is not an uncommon situation. It cannot be done without Clause 64. The existing rules insist that the whole of the matrimonial work shall be dealt with in the same way and that you cannot differentiate among the parts of it.

The noble and learned Lord was wholly wrong when he thought that the object of this was to enable costs to be saved on legal aid. There is no basis in that at all, subject to one point which I am about to make. If the taxpayer is to pay for the legal aid, he is entitled to have something to say about how much the cost should be. With great respect to my noble friend Lord Campbell of Alloway, the recent debate that we had about criminal legal aid has nothing whatever to do with this, nor has the proposed independent body. That is either a good thing or a bad thing, but it has nothing whatever to do with this amendment.

It is obvious that in one way or another, if the legal aid fund is to be met by the taxpayer, somebody on behalf of the taxpayer must have some control over what is paid. What at the moment is suggested is that it should be in the discretion of the individual taxing master in the individual case. That is not on. It may be that an independent body of some kind could be erected; there is something for that and something against it. We argued about that the other day. But somebody has to be able to say as for the whole country or parts of it that the taxpayer is entitled to be represented as to the kind of scale upon which remuneration should be made. It may be that the Lord Chancellor is the right body; it may be not.

But this clause has nothing whatever to do with the Lord Chancellor, which is something that the noble Lord, Lord Meston, had not taken on board. It is the Matrimonial Causes Rule Committee with which the clause is concerned and not any ultimate decision about rates for legal aid. It is the Matrimonial Causes Rule Committee which is being given that power. This is no poodle of the Lord Chancellor.

I read out the composition of the Supreme Court Rule Committee. Now let us look at the composition of the Matrimonial Causes Rule Committee: the Lord Chancellor, the President of the Family Division, Mr. Justice Ewbank, Her Honour Judge Counsell, His Honour Judge Wilson, Mr. Registrar Tickle, Mr. Registrar Lowis, T. A. C. Coningsby QC, and Messrs. Wickerson and Cleary of the solicitors' profession. They all have separate votes. The Lord Chancellor has one vote, but he cannot tell the President of the Family Division or even Mr. Wickerson how they are to vote. He is in a minority of one.

This has nothing whatever to do with the regulation of legal aid amounts, except that the rule committee will have power, as the noble and learned Lord, Lord Denning, pointed out in his contribution (which was the only one, it seemed to me, that had much relation to what this is about), to make prescriptions for different parts of the country and for different classes of work.

Incidentally, the rule that it makes is subject to parliamentary control by negative resolution. I shall be coming back to that point when I come to deal with subsection (1)(a). But the rule committee and not the Lord Chancellor or any other regulating body is that with which the clause is concerned. And the clause only gives it power to legislate for different classes of case—and I hope that I have satisfied the Committee that there are different classes of case, several of them—and for different parts of the country.

One of the deplorable results of the anarchy which has come to pass in this field as a result of the obsolescence of the 1979 rules, although they are still in force, is that there is complete lack of consistency among individual registrars and among different areas of the country. That cannot be allowed to continue on any view. It is not only bad administration and bad finance; it is grossly unfair to the practitioner.

Incidentally, the Law Society is responsible for most of the misinformation fed into the Committee by four speakers, especially in its Bristol manifestation, which is rather less than Swindon fashion, if I may be allowed to derive my analogy from the Great Western Railway. The thing which has been pressed upon me very much by the Law Society is that there should be favourable London weighting. I dare say that that is a good thing. I should like to see it, but without the clause you will not get it. This clause is the clause that will enable London weighting to be put forward and enable consistency to reign once more throughout the country. If there is anything wrong with what is proposed, the rule committee will not pass it to begin with, and, secondly, Parliament will put in a negative resolution to go on with. There is complete control of the operation that is suggested.

It may now be time for me to deal with the alleged constitutional point. It is this. Clause 64(1) says that the rule-making authority: may amend or repeal any statutory provision relating to the practice and procedure of the Supreme Court or county courts so far as may be necessary in consequence of provision made by the rules". The noble and learned Lord, Lord Denning, is quite right to indicate the limited extent to which that is possible.

The noble and learned Lord, Lord Elwyn-Jones, said on Second Reading, but did not make plain today, that that is mutatis mutandis verbatim the same as the parallel provision in the Supreme Court Act.

Lord Elwyn-Jones

My Lords, I mentioned it today without specifying it and I made a distinction between that provision and one affecting the family scene.

The Lord Chancellor

Let me pursue that point, because I think it is worth saying that the Supreme Court Act 1981 contains exactly the same provisions. It is only one of many Acts which does so. On Second Reading, the noble and learned Lord said, "Oh, it has been going on since 1981. That is not long enough". In fact, the same provision, verbatim, goes back to 1925–60 years. So far as I know, it has not given rise to one complaint. That is not surprising considering that the rule committees are composed as I have said, and considering that Parliament is in control, as I have also said.

It must be obvious—I am astonished that the noble and learned Lord, with all his experience of my office, has not been the first to point it out—that with an ongoing institution such as the Supreme Court and a constantly evolving and changing system of rules for its practice and procedure, we shall from time to time have to alter the statutory provisions relating to the practice and procedure in the statute. That is constantly done. The idea that we can go on with a rule committee which does not have that power which is to go on from year to year and that Parliament must be invoked by primary legislation every time is absolute nonsense.

What makes that even more astonishing nonsense is that as part of the reform of costs regulations in the new Order 62, which embodies the changes that I sought to introduce and did introduce through the Supreme Court Rule Committee only this year, the actual power was in fact necessary to be used and was used. It repealed and amended the schedule to the Legal Aid Act 1974, no less in order to provide for the dual system of standard basis and indemnity basis, which substituted the fourfold system of party and party, common fund, trustee and solicitor and own client. As recently as within the past 12 months that has been used without a squeak of opposition from the Law Society, the Bristol Law Society, the noble and learned Lord or anybody else. It is the most arrant nonsense that the Law Society has been talking. I am very sorry that it has been talking it in that way. Nobody could be more determined than I am to ensure that the legal aid system should continue to reward solicitors and counsel adequately.

In passing, may I say that the least worthy of my motives may be that my daughter derives a very large proportion of her income from the matrimonial work which she does from day to day in the Supreme Court and the county courts? So I do know something about what I am talking about. I should not be allowed to forget it for an instant. I am afraid that noble Lords who have spoken do not, and I therefore invite the Committee to reject the amendment.

Lord Elwyn-Jones

I confess that the scene is very remarkable. I receive passionate letters from the Law Society wholly controverting what the noble and learned Lord has said. I greatly regret that my noble friend Lord Mishcon, who spoke with a stronger knowledge of the solicitors' position than I have, has left—I shall not say he has fled the country—to avoid the anger of the noble and learned Lord. If he knew what was coming, I should not blame him if he had.

The communication I received from the Law Society shows that the noble and learned Lord has a certain amount of education work to do. It ends: The Law Society proposes that Clause 64(2) should be deleted and replaced by the following: 'for the avoidance of doubt it is declared that the power conferred by paragraph (b) does not include the power to make different provisions according to whether each or any of the parties is entitled to legal aid in connection with the proceedings"'. The noble and learned Lord says that that is completely unnecessary and that there is no intention of having such a provision. I am also informed that at one stage the noble and learned Lord sought to give effect to the change of policy so that prescribing fixed rates for legal aid cases would replace the existing system under which independent taxing masters and registrars of the court assess the amount to be paid. The noble and learned Lord sought to give effect to that change of policy by drafting matrimonial causes costs rules. He had to withdraw from his intention to ask the rule committee to make such rules when it became apparent to him that the committee had no power to make rules which discriminated between work done for persons requiring legal aid and those who could afford to pay privately.

I ask the direct question: is there now a power to discriminate in the matter of taxation and the award of appropriate costs between work done for persons requiring legal aid and those who can afford to pay privately? Are they both to be dealt with on exactly the same basis in relation to the same scales in respect of the same class of work? If the noble and learned Lord were to give that undertaking then not only should I not press my amendment but I should write some interesting letters to the Law Society.

The Lord Chancellor

The noble and learned Lord is correct to ask me the direct question, and I shall try to anwer it. Of course, the intention is that, unlike the present rules, any future rules will allow unassisted litigants to have their costs taxed by the taxing master, because there will be no prescribed scales for them at all. If they choose to employ three counsel, let them do so. I have no interest in what they charge, nor should I have; nor have I in relation to any other class of work.

I have no doubt whatever that some mechanism for representing the taxpayer in respect of legally aided work is necessary and will be in place. I have no doubt whatever that that mechanism will involve a different prescription in relation to legally aided work along the lines of all other legally aided work in the civil field. Exactly what the prescription will be and how it will affect the drafting of rules, I cannot say. The only difference between the status quo and the status after the passage, as I hope, of Clause 64 will be that the various classes of work in different parts of the country, with London weighting in one part and without it in another, and cases where clients can tax against own solicitor, will be separately dealt with. That is part of the scheme.

The control mechanism for the taxpayer cannot rest entirely on the Matrimonial Causes Rule Committee because it is not directly responsible to Parliament. There must be some other control. Obviously, if we are going to have legal aid taxation between two legally aided clients—that, I think, represents the standard case in matrimonial work—there will have to be a different order for costs from that which would operate as between two unassisted parties or as between the legal aid fund, on behalf of a successful assisted party, against an unsuccessful unassisted party. Those require separate prescriptions. They receive them in every other part of the Supreme Court and in county courts. We are merely putting the civil proceedings for the two kinds of jurisdiction—matrimonial and, let us say, personal injuries—on exactly the same footing.

There is no desire to discriminate against legal aid by those means. It is a pure question of defeating that unacceptable situation in which the 1979 rules have caused us to flounder and to substitute a more flexible and effective method within which the Matrimonial Causes Rule Committee can operate. If the Law Society wants to argue with me as to the basis upon which civil legal aid should be remunerated, we can no doubt enter into fruitful discussions. But this particular clause is needed whether they are fruitful or not.

4 p.m.

Lord Elwyn-Jones

With great respect to the sound a fury, we are still left—

The Lord Chancellor

Sound.

Lord Elwyn-Jones

Very well; sound will do for the purposes of my observations. I have never succeeded in quarrelling with the noble and learned Lord for long, and I do not propose to start at this advanced stage in our respective lives and careers. However, it appears that at the end of the day there will be a difference in the form of taxation. All that I can say at this stage is that I shall now take advice from the Law Society and from the Bar itself. I am sorry to be responsible for yet another shadow over the troubled life and world of the noble and learned Lord the Lord Chancellor, but the shadow must remain until I see whether there is any light which gives any benefit to him and which justifies me in not pressing the matter further. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

On Question, Whether Clause 64 shall stand part of the Bill?

Lord Meston

I do not intend to press the Motion that Clause 64 should not stand part. Indeed, I should like to say that I am particularly grateful to the noble and learned Lord the Lord Chancellor for his full and detailed response to Clause 64, which, as he will know, has caused considerable concern in both branches of the profession.

The noble and learned Lord mentioned the 1979 scales, how they have become out of date and how the taxing registrars have had to fall back on the discretion or escape clause. One can hardly quarel with a provision which allows for what he called consistency but which I would prefer to call reasoned inconsistency in different areas throughout the country, but the noble and learned Lord will understand that alarm has been caused by a provision that refers to distinguishing between legal aid proceedings and proceedings in which there is no legal aid. He will certainly understand if I express the concern that is perceived that it may happen all over again—in other words, that new standardised scales will be fixed which will again fall out of date and that the taxing authorities will again have to fall back on discretion and will find themselves, under new rules, confronted with a more limited escape clause. That is a matter of concern. We are, however, grateful for the noble and learned Lord's full and detailed response, and I do not propose to press matters further.

The Lord Chancellor

I should like to detain the Committee for a couple of sentences to deal with the remarks of the noble Lord, Lord Meston. Of coure, if the clause is accepted it will be open to whatever mechanism ultimately emerges to have annual up-ratings. The fear that the noble Lord expresses that the thing will be stuck in the way that the 1979 rules are stuck is, I believe, without foundation, and certainly it will not be stuck while I am here.

Lord Campbell of Alloway

I should like briefly to thank my noble and learned friend for his detailed explanation, to which I listened with great care and which I found wholly convincing without qualification. Irrespective of whether or not the Bristol Law Society finds it convincing I feel it right to say that I do, and without qualification. I am extremely grateful.

Lord Morris

I should like to ask my noble and learned friend a simple question in order to clarify my own mind. It is so simple as to be positively naive. My noble and learned friend laid much weight upon the great authority of the rule-making authorities in the course of his splendid and fascinating argument. Who appoints those rule-making authorities, and who ratifies the appointment of those rule-making authorities?

The Lord Chancellor

Certain members are ex officio. I speak in the presence of the noble and learned Lord. I am likely to be wrong in detail, and I shall be corrected if I am. Certain members, as I say, are ex officio. The Family Division president is an obvious case. There has, I believe, to be one High Court judge, two circuit judges, two registrars, two members of the Bar and two members of the solicitors' profession who are sent up from the Bar. Whether or not I have some veto over them, I do not know because I have never exercised it.

Lord Elwyn-Jones

I do not think so. They are a very highly respectable body, and I say nothing against them.

Lord Meston

I had intended to mention to the noble and learned Lord that I speak, I am sure, for the whole family Bar when I say that we would hate to be deprived of the pleasure of litigating against his daughter.

Clause 64 agreed to.

Remaining clauses and schedules agreed to.

House resumed: Bill reported without amendment.