THE STATUTORY OBJECTIVE AND THE GENERAL PRINCIPLE (Hansard, 25 July 1990)

§ The Attorney-General
I beg to move amendment No. 97, in page 15, line 38, leave out 'those' and insert 'the'.

§ Madam Deputy Speaker
With this we shall discuss Government amendments Nos. 98 to 101.

§ The Attorney-General
Amendments Nos. 97, 98 and 100 are minor drafting amendments designed to remove an element of ambiguity that may have crept into clause 15 as a result of previous amendments.
On amendments Nos. 99 and 101, after the explanation that I gave in Committee of the purpose and effect of what we called the cab-rank rule in clause 15, concerns were expressed about the exact interpretation of subsection (3)(c). They arose in particular to the answer that I gave to my hon. Friend the Member for Stroud (Mr. Knapman) about rules permitting an individual advocate to refuse a case on grounds relating to the amount of remuneration offered.
Having responded to the substance of the question, which I think correctly represented the Government's view, I later felt that I had compressed the necessary context of how the new provisions would affect the process by which decisions are taken under the Bill. The Government have reconsidered whether it is possible to express more clearly not only the obligations that subsection (3)(c)(iii) will require an authorised body to place on individual advocates, but the precise remit of the advisory committee, the Lord Chancellor and the designated judges in approving or reviewing such rules. The amendments are designed to achieve that clarification.
I will begin by putting beyond doubt the Government's position. We could not and would not wish to impose a statutory obligation on a professional body as a whole or on individual advocates to undertake legal aid cases no matter what the level of remuneration payable. To do so would interfere with the careful balance struck in the provisions of the Legal Aid Act 1988 dealing with remuneration.
The essence of those provisions is to empower the Lord Chancellor to set remuneration rates that are enough, but not more than enough, to attract lawyers to do the work. Clearly, compulsion is incompatible with that. Even more importantly, compulsion would imperil the freedom of the individual practitioner and also the legal profession itself.
The Government are also concerned not to restrict the freedom of individual advocates in a number of other circumstances. It must not be possible, for example, for particular litigators to choose to send particular advocates so great a volume of legal aid work that those advocates are unable to structure their practices in the way that they 595 want or to undertake other work. It is important that the legislation is couched in such a way as to allow professional bodies and the new framework the maximum flexibility possible to deal with such situations, consistent with the efficient and proper administration of justice.
There is no reason to accept the argument that different requirements imposed on advocates of different backgrounds automatically constitute an unlevel playing field. The differences may be justified, necessary and fair.
That being the case, I am introducing the amendments to remove an ambiguity that some people believe exists in the current drafting of clause 15. Confusion has arisen mainly because of the phrase in subsection (3)(c)(iii): the nature of the source of any financial support". The intention behind that phrase was to differentiate between the source of any financial support narrowly considered and certain of its other characteristics. The new machinery set up under the Bill would not be obliged to strike down every professional rule that allowed an exception to the principle of non-discrimination.
The Government believe that if such a rule were framed in terms of accepting or refusing work simply on the basis of whether or not it was legally aided, it would not be acceptable. The legislation ought to require those comprising the machinery to strike it down. By contrast, the Government do not believe that the machinery ought to be able to strike down a rule that permitted an advocate to refuse a legally aided case where there are reasonable grounds for him considering that the fee is not a suitable one for him in all the circumstances, when his standing, seniority and standing will be relevant.
The test of reasonableness is an objective one, and the advocate in a given instance would have to defend his application of it.

§ Mr. Carlile
I am grateful to the right hon. and learned Gentleman for confirming that the reasonable grounds for objection will be objective and not subjective, but can he confirm that, for the purposes of subsection (5), "reasonable grounds" will be a matter for the new machinery to consider?

§ The Attorney-General
Yes, I think that that is the case. What is claimed to be a reasonable ground can be the subject of an objective test, and it will fall to those who comprise the machinery to determine whether or not it is satisfied in a given case.
Subsection (5) will provide a statutory clarification of the extent of the general principle of the nondiscrimination rule. It will now be provided that the rule shall not be taken as incompatible with the general principle if it allows the advocate or litigator to withhold his services if there are reasonable grounds for him to consider—having regard to the circumstances of the case, the nature of his practice, or his experience and standing—that he is not being offered a proper fee.
As I have stated, the test of reasonableness is objective and the individual will have to defend it. Although the advisory committee will be free to consider the merits of rules which go beyond the statutory requirements of clause 15(3)(c)(iii), the committee and those comprising the rest of the machinery will be precluded from finding that the 596 interests of the proper and efficient administration of justice require a legal practitioner to act if he is not to be properly remunerated for his services.
I have perhaps spent rather too long moving the amendment, but the matter has been of the greatest concern to the legal profession, and quite properly so. I believe that, as a consequence of the substantial consultations that have taken place, the amendment meets reasonably the concerns that have properly been expressed and I hope that it will receive the approval of the House.

§ Mr. Alex Carlile
The Attorney-General was right to state that there has been extensive consultation about the matter. I am sure that all sides of the profession, and certainly the Bar, are grateful for the extent of the consultation.
As the Government are aware, the Bar has taken a strong line with its members in relation to legal aid. It has gone so far as to say that it should be a principle that, if a barrister is offered a brief in a field in which he is sufficiently expert, at a level appropriate for his practice, even if it is a legal aid case, he should take it. Indeed, the rule at the moment is that he must take it. I understand the difficulties that can arise from such a stringent rule, but I suggest that it is a very important principle for the litigant that there should be expert advocates to do all cases requiring such expertise, whether they are privately paid or the subject of legal aid.
I am grateful to the Attorney-General for confirming that the phrase in amendment No. 101 if there are reasonable grounds for him is an objective test and not subjective, and that reasonable grounds for the purposes of new subsection (5) are matters for the new machinery.
How does amendment No. 101 impinge on legal aid work? Will an advocate be able to decline a legal aid case within his field of practice simply because legal aid rates are lower than his private rates? The way in which that is answered will be extremely important for litigants in future. It may have some little influence on the way in which the machinery approaches those issues.

§ The Attorney-General
I am grateful for the hon. and learned Gentleman's comments. The consultation has been worth while. It does not follow that, because legal aid rates may be lower than some private rates, legal aid fees are not to be regarded as proper fees. All the circumstances must be considered. I have identified some that will be of general application, but all the circumstances of a case would have to be looked at and the objective test of reasonableness would then have to be determined. That would be for the new machinery.