Lords Sitting of 4 February 1988

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chelmsford): The LORD CHANCELLOR on the Woolsack.

Lord Monkswell: Personal Statement
Lord Monkswell: My Lords, with the permission of the House, I should like to make a short personal statement in connection with the demonstration which occurred after the vote on Clause 28 last Tuesday. On that day, four young ladies were admitted to the visitors' gallery in my name. Until today I was under the impression that they were not involved in the demonstration. However, I have been advised that those young ladies were involved. On the basis of that advice, I tender my apologies to Black Rod and his staff for any difficulties that they had to contend with as a result of my actions. While neither condemning nor condoning the demonstration, I believe that it was understandable, given the results of the vote on Clause 28.
Noble Lords: Oh!
Lord Monkswell: I conclude by repeating the words spoken by a 12 year-old girl yesterday as regards Clause 28:
"It is just what the Germans did to the Jews".

Motorcycles: Control of Noise
Lord Rodney: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what progress has been made in curbing motorcycle noise in urban areas since the answer to Lord Rodney's question on 21st November 1985 (Official Report, Vol. 468, col. 654).
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, a new directive on motorcycle noise has been agreed by the European Community. It will introduce more stringent requirements for new motorcycles from 1990. The Motor Cycle Noise Act 1987 allows the Secretary of State to make regulations controlling the quality of replacement exhausts and silencers for motorcycles when they are offered for sale. We are preparing regulations to introduce both those new controls and I expect that we shall consult on them very shortly.
Lord Rodney: My Lords, I thank my noble friend for that reply, which seems to refer in the main to new motorcycles. I am not sure that new motorcycles make most of the noise. I have never seen a motorcyclist stopped for making too much noise. Can the Minister tell the House whether it will be
1184
possible to institute periodic checks such as those which are made for speeding?
Lord Brabazon of Tara: My Lords, we all appreciate that noisy motorcycles are a great problem. Concerning the use of noise meters at roadsides, the police have found that procedure difficult to operate because of the problems of finding suitable test sites and of excluding noise from other sources. I can assure the House that there are prosecutions for motorcycle noise offences and that the police prosecute when they can.
Lord Hunt: My Lords, is the Minister aware that it is not only motorcycle noise in urban areas which causes grave concern? Trail riding in upland areas and particularly in the national parks is also a problem.
Lord Brabazon of Tara: My Lords, I agree with the noble Lord. It is possible that the noise problem is even worse in rural areas than in urban areas where there are other background noises. However, we believe that the various measures concerning the sale of replacement silencers and making sure that they are up to scratch, together with the regulations for new motorcycles, will go some way towards alleviating the problem.
Lord Underhill: My Lords, taking into account the Answer which the Minister has just given, we have legislation to deal with exhaust systems and silencers on new machines and also replacement equipment. Therefore the whole problem is now one of enforcement. Does he agree that it is difficult to see how a Community directive can assist with enforcement? Do the Government have any ideas on solutions to the problem? Enforcement could tie up police to a considerable extent. However, the nuisance must be dealt with. Responsible motorcycle organisations agree with that assessment of the situation.
Lord Brabazon of Tara: My Lords, that is quite correct. The police do not have the resources to do absolutely everything that they might like to do. However, I can assure the House that exhausts are checked in MOT tests and a motorcycle can fail the test if one is leaking or insecurely mounted. Motorcycles will also have to have silencers which conform with the regulations.
Lord Nugent of Guildford: My Lords, is my noble friend aware that many young motorcyclists actually tamper with their exhausts in order to remove the silencing material? Therefore it is necessary for the police to institute roadside checks in order to see whether the silencing material is still present.
Lord Brabazon of Tara: My Lords, it is an offence to tamper with an exhaust pipe so that it makes more noise than it should. I understand that there have been prosecutions involving such actions. The new British standard replacement silencers should be made tamper-proof if possible.
Lord Elton: My Lords, is my noble friend aware that the level of noise from motorcycles is still unsatisfactory? In June 1934 my father moved an amendment into the Road Traffic Act of that year which made it illegal to supply a vehicle which was not silenced. In 1974 I moved an amendment to the Road Traffic Bill which made it illegal to drive such a vehicle and which was later struck out in another place. Can the Minister give an undertaking that in the year 2014 my son will be able to assure me of a happy issue to my family's involvement in the matter?
Lord Brabazon of Tara: My Lords, I can assure my noble friend that it will be sooner than that.
Lord Mowbray and Stourton: My Lords, is my noble friend aware that one of the most troublesome matters, apart from the total volume of noise that a motorcycle can make in the daytime in traffic, is the early bird who gets up to go to work on a motorbike and wishing to say hello to a boyfriend or girlfriend left behind in the house revs up his bike as a symbol that he is off? Those are the people who wake everyone up and disturb them.
Lord Brabazon of Tara: My Lords, it is an offence to ride a motorcycle which causes excessive noise or to ride in such a way as to cause excessive noise which could have been avoided with reasonable care on the part of the driver. That covers the point which my noble friend makes. On the other hand, I should think that it would be quite difficult for the police to bring prosecutions in such circumstances.
Lord Bottomley: My Lords, as the Member of your Lordships' House who sponsored the last Bill dealing with that subject during the last Parliament, I ask whether it is not regrettable that no progress has been made as a result of the passing of the Act.
Lord Brabazon of Tara: My Lords, the House will be grateful to the noble Lord for piloting the Bill through the last Parliament in its closing stages. As I said in my original Answer, we have now prepared regulations to introduce the new controls. We shall be consulting on them shortly. I hope that they can be introduced quite shortly.

Confectionery Exports: Japanese Tariff
3.9 p.m.
Lord Mottistone: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they are taking to persuade the Japanese to reduce their high import duty of 35 per cent. on sugar confectionery.
Lord Beaverbrook: My Lords, we shall be pressing in the Uruguay round of multilateral trade negotiations for reductions in levels of tariffs, including the Japanese duty on sugar confectionery. Meanwhile, we are taking appropriate opportunities
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to remind the Japanese Government that we regard the level of the duty as excessive.
Lord Mottistone: My Lords, can my noble friend tell the House what sort of level the Government will propose for the tax?
Lord Beaverbrook: My Lords, we regard an acceptable level to be one which compares favourably with the EC tariff on such products. Of course ultimately we should like to see no tariffs whatsoever.
Lord Molloy: My Lords, is the Minister aware that this question goes very far beyond the matter of confectionery? It concerns the appalling arrogance of the Japanese Government, who will in no way listen to the appeals of the United States of America, our allies, or the British Government. Is it not about time that a British Government and a United States Government made joint representations to the Japanese and asked them whether they will make every endeavour to be honest and truthful?
Lord Beaverbrook: My Lords, there are areas where barriers to UK exports still exist, and we tackle them. However, UK exports were well up last year; an increase of 25 per cent. over the previous year. I think that all Members of your Lordships' House would wish to welcome that achievement by British exporters.
Lord Molloy: My Lords, it is very hard to get that tiny concession from the Japanese. It is about time that the Americans and the British asserted themselves and the dignity of both nations.
Noble Lords: Order!
Lord Campbell of Croy: My Lords, will the Government also bear in mind another kind of confection which is in liquid form, which comes from Scotland and which at the present time is discriminated against by Japanese taxation?
Lord Beaverbrook: My Lords, yes. My noble friend answered a Question on this point last Monday.
Lord Williams of Elvel: My Lords, the noble Lord was kind enough to say that the Government make representations directly to the Japanese Government on this and other trade matters. Does he agree that representations have been made by successive British Governments and successive trade Ministers to the Japanese and that the result is not exactly what we might have hoped for? Can he point to any particular successes that these direct approaches have achieved?
Lord Beaverbrook: My Lords, I think that it is very important that all possible avenues are explored in order to reduce tariffs against British exporters. However, we feel that Japan is very unlikely to make any concessions outside the GATT. But my noble friend the Secretary of State will have a further opportunity to raise the issue during his visit later this year. I welcome that initiative and hope that he has every success.
Lord Mellish: My Lords, it seems that it was only the other day when we were fighting that lot. Will the Minister be good enough to explain why we do not impose tariffs on their exports when they come to us?
Lord Beaverbrook: My Lords, we fought for a free world and we still fight for free trade.
Lord Mottistone: My Lords, can my noble friend perhaps enlarge a little on that response? Is he aware that I managed to persuade the Japanese to reduce their tariffs on chocolates and biscuits in 1982 but they would not do so on sugar confectionery? Is he also aware that I sought to persuade them at that time that the right level of tax should be the one that we put on Japanese motor cars and other such goods, namely around 5 per cent.? Can he say whether the Government have in mind that kind of figure?
Lord Beaverbrook: My Lords, yes, I am aware of my noble friend's efforts in this regard. I said a little earlier that we should certainly not wish to see any higher tariff than that imposed by the EC on Japanese goods of that nature.

Religious Worship in Schools
3.13 p.m.
Lord Orr-Ewing: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what percentage of schools are contravening the law requiring an act of corporate worship to take place at the start of each school day, as provided in the Education Act 1944; and what action has been taken to enforce the law.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, the Government look to the schools themselves and their local authorities to observe the requirements which the 1944 Act lays on them. My right honourable friend the Secretary of State has power to intervene under Sections 68 and 99 of the Act where complaints are made that particular schools are not providing collective worship in accordance with the 1944 provisions. All such complaints are fully and carefully investigated. Very few such complaints are made each year.
Lord Orr-Ewing: My Lords, I thank the noble Baroness for that reply. However, I do not think that she has dealt with the question of whether any official judicial action has been taken. Is it not a sad reflection on the present state of affairs that the 1944 Act now appears to be totally disregarded by over 90 per cent. of schools? As the new Education Bill will soon be coming to this House, will HMG consult with the leaders of the Christian Churches to see whether the schools' obligation to organise Christian worship and teaching could not be included in the new Act? If that were agreed, I should also like to suggest that in the Act there might be a written obligation to allow parents who do not wish their
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children to attend such worship to opt out of it and to make arrangements for their own, different religion to be taught instead. Will my noble friend look seriously at that suggestion before we get down to the nitty-gritty of this important new Act?
Baroness Hooper: My Lords, my noble friend refers to a figure of some 90 per cent. in relation to non-observance of this requirement. The Government are not aware of such evidence and indeed I should be surprised if that figure were correct. If the noble Lord has such evidence, I should be grateful if he could supply it to me.
So far as concerns the place of the Christian tradition in collective worship, the law does not explicitly require the act of worship to be Christian although the authors of the 1944 Act clearly envisaged that it would be. The law requires of county schools that worship should be nondenominational. Over the years, as the ethnic and religious backgrounds of pupils have become much more varied, there has been a growing move to multi-faith collective worship, particularly in schools with a high proportion of pupils from non-Christian backgrounds. The Government recognise the reasons for that trend, as I believe do the Churches. At the same time, in many areas and in many schools where Christianity remains the dominant religion, it is right that worship should continue to be mainly Christian in flavour. It is also important that schools should be sensitive to the balance of religions among their pupils and that they should devise forms of collective worship in which as many pupils as possible can participate. The Churches have an important role to play in that whole area.
Lord St. John of Fawsley: My Lords, does my noble friend agree that at a time of declining Church attendance, it is all the more important for children to experience a public act of worship corporately together? Does she further agree that trying to teach RE and leaving out the act of worship is like trying to teach astronomy and leaving out the stars? What action is her ministry taking to ensure that these acts of worship are indeed acts of worship and not seminars on current affairs?
Baroness Hooper: My Lords, the Government are fully committed to maintaining the requirement for a daily act of worship to take place in all maintained schools for all pupils, and the proposals for change contained in the Education Reform Bill do not affect that general requirement in any way. The whole area of the teaching of religious education is of course separate.
Lord Parry: My Lords, will the noble Baroness, Lady Hooper, also accept that part of the difficulty of organising an act of corporate worship, where the whole school wishes it, lies in the fact that some schools are now so large that it is impossible to gather the whole community together in a single act of worship? Furthermore, is she aware that there has been very real concern among people in schools that the act of worship had failed and had become merely an assembly at which some prayers were read?
Baroness Hooper: My Lords, yes. The existing law on collective worship was first criticised officially in 1986 by the Education, Science and Arts Committee report on primary education. Subsequently a consultation exercise was carried out by the Department of Education and Science in 1987 which revealed overwhelming support from educational and Church bodies for greater flexibility in the timing and organisation of daily collective worship. Certainly the design and size of secondary school premises make it more difficult than the authors of the 1944 Act envisaged.
Viscount Eccles: My Lords, is the noble Baroness aware that that part of the 1944 Act was never capable of being carried out? From 1954, off and on for eight years, I had to try to apply it but it proved quite impossible. A teacher who is not a practising Christian can teach religion, but it is not reasonable to ask someone who is not a practising Christian to hold an act of Christian worship.
Baroness Hooper: My Lords, I am grateful to my noble friend for the benefit of his considerable experience in this matter.
Lord Peston: My Lords, I welcome the reply that the noble Baroness gave—I think it was two questions back—in which she outlined the Government's general view of the position and the circumstances that are now emerging in our society. Will she confirm that the religious provisions in the new Education Bill will allow for much greater flexibility under the heading of corporate worship with regard to the timing of the act of corporate worship? Will she also confirm that this greater flexibility has been broadly welcomed by all the relevant Churches?
Baroness Hooper: My Lords, yes, indeed. The response to the consultation process from the Churches and educational establishments is what has led to the provision in the Bill. Clause 79 of that Bill provides that such arrangements may in respect of each school day provide for a single act of worship for pupils or for separate acts of worship for pupils in different age groups or in different school groups.
Lord Elton: My Lords, notwithstanding the Answer that my noble friend gave to the substantive Question, and the contribution of my noble friend Lord Eccles, is the Minister aware that there is some concern in this country about the way in which the place of religion, and in particular the Christian religion, seems to be slipping in the educational arrangements? Will she ask her right honourable friend to bear this in mind when he is looking at the curriculum as well as at morning worship?
Baroness Hooper: My Lords, yes. I shall happily draw this point to the attention of my right honourable friend. However, I should like to repeat that the Government are fully committed to maintaining the requirement for a daily act of worship to take place in schools because they feel that this is an important part of the school programme.
Lord Renton: My Lords, would not some of the problems that have been mentioned be solved without difficulty by calling upon the clergy and the religious leaders of non-Christian bodies to help the headmasters of schools by inviting these religious leaders to conduct the acts of worship instead of the headmaster?
Baroness Hooper: My Lords, the provisions for greater flexibility by allowing acts of collective worship under the proposals in the Bill to take place at different times and in different groups will enable representatives of outside interests to participate in these acts of worship. It is something that we would welcome.
Lord Ritchie of Dundee: My Lords, with reference to the point raised by the noble Lord, Lord Orr-Ewing, about opting out, can the Minister confirm that parents already have the right to remove their children from any act of worship in which they do not wish them to take part? I cannot say whether this provision is in the 1944 or the 1968 Act, but perhaps she can confirm that this is so.
Baroness Hooper: My Lords, I am grateful to the noble Lord for reminding me that I omitted to add this point in answering the original supplementary question of my noble friend. The 1944 Act provides that a pupil may be excused from attending collective worship at the request of his or her parents.
Baroness Phillips: My Lords, will the noble Baroness confirm that the voluntary schools have never deviated from this? They have always provided the act of worship throughout the whole period, whichever government were in office.
Baroness Hooper: My Lords, I am not sure that I can confirm it, but we certainly hope and expect that that is the case.
Baroness Strange: My Lords, will the Minister confirm that the act of worship would include hymns? Hymns are a very important part of our British heritage and give great comfort and encouragement to many people at all times in their lives. An example is:
"All people that on earth do dwell,
Sing to the Lord with cheerful voice,
Him serve with mirth, his praise forthtell,
Come ye before Him and rejoice".
Baroness Hooper: My Lords, I am inclined to agree with my noble friend that the singing of hymns can uplift the spirit, and the memorising of the words of hymns even more so. The arrangements that are proposed will be met by the individual schools, and it is proposed that head teachers, in consultation with the governors, will make the necessary arrangements.

Severn Estuary: Second Crossing
3.25 p.m.
Lord Crickhowell: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether there have been any significant delays in the work on the planning and provision of a second Severn crossing since the original announcement on 24th July 1986, and whether they are confident that the crossing will be completed in time to meet the traffic demands likely to develop by the mid 1990s.
Lord Brabazon of Tara: My Lords, following the announcement made by my noble friend in his former capacity on 24th July 1986, consultants have been appointed to carry forward the initial design of the scheme. The results of the work undertaken to date will be presented at a series of public exhibitions to be held in the vicinity of the crossing this month. The Government remain confident that the crossing can be provided by the mid-1990s and will meet the expected traffic demand for the foreseeable future since there will then be a total of four lanes each way across the estuary.
Lord Crickhowell: My Lords, I thank my noble friend for that Answer. Does he recall that there was an interval of some 15 months between my original announcement and the appointment of consultants? Does he recognise that the timetable for these large and complicated projects is extremely tight and that there will be the greatest difficulty in meeting it unless a firm timetable is laid out and is met at every stage? Will he take it from me, and from those who have been involved in this matter for a long time, that there can be no doubt that there is an imperative need for this crossing to be built by the mid-1990s to meet likely traffic demands?
Lord Brabazon of Tara: My Lords, I recognise my noble friend's deep interest in this matter and his enormous efforts in getting it under way in the first place. I hope that no time has been wasted. It is a complex project. The terms of the appointment and the brief for the consultants needed special care. However, I reaffirm the Government's commitment to the provision of the second crossing by the middle of the next decade.
Lord Prys-Davies: My Lords, can the Minister confirm that if the traffic flow over the existing bridge continues to grow at the record rate for 1986–87, the designed maximum carrying capacity of the bridge will be reached in the early 1990s and not in the middle of the 1990s? In that event, the existing bridge would become overloaded, with all that that implies.
Lord Brabazon of Tara: My Lords, we are progressing as fast as we can to achieve this objective by the mid 1990s. We shall monitor the situation on the existing crossing in the meantime and institute further traffic management measures if necessary.
The Earl of Halsbury: My Lords, will the Minister inform the House whether the brief to the consultants includes consideration of the Severn barrage scheme?
Lord Brabazon of Tara: My Lords, I understand not. That is a separate project.
Lord Tordoff: My Lords, in view of the enormous capital cost and the time that will be taken to write off that capital cost, will the Government take the opportunity to review their attitude to tolls on estuarial crossings?
Lord Brabazon of Tara: My Lords, we have made no decision yet on whether this second crossing should be tolled or not. However, on tolled crossings, we believe that there are more pressing demands on resources than abolishing tolls and that the estuarial crossings have been promoted by legislation unique to each on the basis that costs would be recovered from tolls.
Lord Underhill: My Lords, with reference to the supplementary question of my noble friend Lord Prys-Davies, is the Minister aware that following the date referred to in the Question of the noble Lord, Lord Crickhowell, I have five other dates—I have the documents with me—when Ministers said that they hoped to provide this second crossing by the mid-1990s? But in each case—perhaps I may have the leave of the House to quote—it was stated:
"if the build-up of traffic needs it by then and Parliament so decides".
What does that mean? Does it mean that the decision to establish the second crossing is not as firm as we believed? What will be the criteria for determining the build-up of traffic? Is there much point in going ahead with consultants and discussing tenders if the Government have not yet made up their minds that there will be a need for the second crossing by the 1990s?
Lord Brabazon of Tara: My Lords, we have always affirmed our commitment to the provision of a second crossing by the middle of the next decade, depending on traffic growth. Obviously if traffic does not grow then there could be some slippage in the project; but there is a firm commitment to build the bridge.
Lord Parry: My Lords, will the noble Lord then convey to his right honourable friend the real urgency expressed by the noble Lord, Lord Crickhowell, in asking this Question, and convey to him the fact that all sectors of the economy in Wales see the rapid beginning of this project as essential to that economy? Will he please see that there is no slippage?
Lord Brabazon of Tara: My Lords, I have said that I shall convey to my right honourable friend the remarks that have been made in your Lordships' House this afternoon. I have said also that I hope that there will be no slippage.

Personal Statements: Procedure
3.32 p.m.
Lord Diamond: My Lords, perhaps this is an appropriate time for me to seek your Lordships' indulgence to ask the Leader of the House whether he has it in mind to seek the guidance of the Procedure Committee on any necessary clarification of our normal procedures with regard to personal statements and whether he is of the view that such clarification might be necessary?
The Lord Privy Seal (Lord Belstead): My Lords, the guidance in the Companion to Standing Orders on personal statements in your Lordships' House to any Lord wanting to make such a statement is perfectly clear. However, in response to the noble Lord, Lord Diamond, it occurs to me that possibly the informal body which consists of the Leaders and Whips of the parties in your Lordships' House, together with the noble Baroness the Convenor of the Cross-Bench Peers, might get together to decide whether they feel that there is any point in the guidance which should be brought to the attention of the Procedure Committee.
Lord Cledwyn of Penrhos: My Lords, is the noble Lord aware that I fully agree with his suggestion that this should be referred to the informal committee of Leaders and Whips and not to the Procedure Committee? It is of course impossible to control a noble Lord or to anticipate personal statements when they exceed the bounds of propriety.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon, my noble friend Lady Hooper will, with the leave of the House, repeat a Statement that is to be made in another place on education in inner London.
It may be for the convenience of the House if I announce that the Report stage of the Legal Aid Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during the adjournment the Motions for approval on the Employment Protection (Variations of Limits) Order 1987 and the Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1987 will be taken.

Licensing Bill
Brought from the Commons; read a first time, and to be printed.
Welsh Development Agency Bill
Brought from the Commons; read a first time, and to be printed.

Income and Corporation Taxes Bill [H.L.]
3.35 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move that the Commons amendments be now considered.
Moved, That the Commons amendments be now considered.—(The Lord Chancellor.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
[References are to Bill 62 as first printed for the Commons.]
1 Clause 9, page 6, line 39, leave out '70' and insert '69'.
2 Clause 19, page 16, line 28, at end insert 'and subject also to section 170'.
3 Clause 19, page 16, line 36, at end insert 'and subject also to section 170'.
4 Clause 36, page 33, line 21, after 'immediately' insert 'after'.
5 Clause 43, page 39, line 8, after '22(2)' insert 'and (3)'.
6 Clause 136, page 113, line 2, leave out 'this section' and insert 'section 135'.
7 Clause 139, page 120, line 18, leave out 'that office or employment' and insert 'the office or employment by virtue of which he acquired the shares'.
8 Clause 174, page 152, line 34, leave out 'or' and insert 'and'.
9 Clause 178, page 155, line 17, leave out '176' and insert '174'.
10 Clause 190, page 168, leave out lines 28 to 31.
11 Clause 218, page 194, line 15, leave out 'trade' and insert 'trades'.
12 Clause 218, page 194, line 20, leave out first 'of' and insert 'in'.
13 Clause 218, page 194, line 35, leave out 'and 218' and insert 'to 217'.
14 Clause 242, page 215, line 45, leave out '393'(8)' and insert '393(9)'.
15 Clause 281. page 250, line 29, leave out '(4)' and insert '(6)'.
16 Clause 349, page 323, leave out lines 30 and 31 and insert—
'(d) to any payment to which section 369 or 479(1) applies; and subsection (1) above does not apply to any small maintenance payment within the meaning of section 351.'.
17 Clause 409, page 386, line 20, after 'to' insert 'in'.
18 Clause 413, page 391, line 39, after 'company' insert 'or, in the case of a company within section 402(3)(b), of its holding company'.
19 Clause 413, page 391, line 42, leave out second 'the' and insert 'that'.
20 Clause 413, page 391, line 43, leave out 'of the company'.
21 Clause 427, page 407, line 15, leave out 'this section' and insert 'section 426'.
22 Clause 503, page 485, line 34, after '833(4)(c)' insert 'and of Chapter 1 of Part III of the Finance Act 1971'.
23 Clause 513, page 494, line 1, leave out subsection (1).
24 Clause 601, page 579, line 23, at end insert 'or'.
25 Clause 601, page 579, line 28, leave out '590(5)' and insert '19(3) of the Finance Act 1970'.
26 Clause 615, page 589, line 16, at end insert 'or'.
27 Clause 646, page 616, line 23, after 'under' insert 'section'.
28 Clause 687, page 649, line 11, leave out 'founded' and insert 'found'.
29 Clause 713, page 676, line after 'before' insert 'on'.
30 Clause 719, page 683, line 5, leave out '(5)' and insert '(4)'.
31 Clause 753, page 719, line 6, leave out '13' and insert '12'.
32 Schedule 7, page 845, line 21, after 'sections' insert '354(5) and (6)'.
33 Schedule 7, page 845, line 24, leave out '354' and insert '354(1) to (4)'.
34 Schedule 7, page 845, line 27, after 'sections' insert '354(5) and (6)'.
35 Schedule 7, page 845, line 35, leave out '354' and insert '354(1) to (4)'.
36 Schedule 18, page 914, line 2, leave out second 'or' and insert 'and'.
37 Schedule 27, page 973, line 17, leave out '760(3)(b)' and insert '760(3)(c)'.
38 Schedule 29, page 985, line 33, in column 2, leave out 'and (6)(a)' and insert ', (6) and (7)(a)'.
39 Schedule 29, page 985, line 41, in column 1, leave out '602(2)' and insert '602'.
40 Schedule 29, page 985, line 48, in column 2, leave out '602(2)' and insert '602'.
41 Schedule 29, page 985, line 49, in column 2, leave out '605(2)(a)' and insert '605(3)(a)'.
42 Schedule 29, page 986, line 29, leave out '602(2)' and insert '602'.
43 Schedule 29, page 986, line 31, leave out 'that subsection' and insert 'subsection (2) of that section.'.
44 Schedule 29, page 986, line 42, after '267(3C)' insert 'or 278(5)'.
45 Schedule 29, page 986, leave out lines 44 and 45 and insert—
'(c) in subsection (4), in paragraph (a) for "85 of the Finance Act 1972" there shall be substituted "239 of the principal Act", and in paragraph (b) for "85" there shall be substituted "239"; and'.
46 Schedule 29, page 988, leave out lines 9 and 10 and insert—
'15. In the Capital Gains Tax Act 1979

(a) for "the Taxes Act", in each place where it occurs except sections 1, 31 and 34(4)(a), the definition of "the Taxes Act" in section 155(1) and paragraph 6(8) of Schedule 1 and any provision mentioned in paragraph (b) below, there shall be substituted "the Taxes Act 1988";

(b) in sections 16, 26, 29A, 32, 35, 75, 84, 87, 98, 107 and 136(10), paragraphs 4 and 5 of Schedule 5 and paragraphs 12 and 21 of Schedule 6 for "the Taxes Act" there shall be substituted "the Taxes Act 1970";

and in addition the 1979 Act shall have effect subject to the amendments specified in relation thereto in paragraphs 16 to 28 and 32 below.'
47 Schedule 29, page 999, line 8, after '333' insert 'of the Taxes Act 1988'.
48 Schedule 29, page 1000, line 5, leave out '619(7)' and insert '620(9)'.
49 Schedule 29, page 1000, line 10, leave out '(2)' and insert '(5).
50 Schedule 29, page 1000, leave out lines 12 to 19.
51 Schedule 29, page 1000, line 22, leave out '579' and insert '519'.
52 Schedule 29, page 1000, line 27, at end insert—

'5(1)(c)

from "243(6)" to "1972"

8(5) of the Income and Corporation Taxes Act 1988.

'5(2)

from "the said" to "1972"

sections 8(5) and 822 of the 1988 Act (over-deductions from preference dividends before passing of annual Act)'.

53 Schedule 29, page 1001, line 3, at end insert—

'12(3)

154 or 251(1)

113 or 337(1)'.

54 Schedule 29, page 1001, line 12, after '134' insert '(twice'.
55 Schedule 29, page 1001, line 24, after '348' insert 'or 349(1)'.
56 Schedule 29, page 1001, line 26, at end insert—

'85(4)

111

54'.

57 Schedule 29, page 1002, line 1, at end insert—

'2, para. 8(1)(c)

78(1) or 306(1) of the principle Act

32(1) of the principal Act or section 306(1) of the Income and Corporation Taxes Act 1970'.

58 Schedule 29, page 1002, line 7, at end insert—

'6(1)(c)

463

706'.

59 Schedule 29, page 1002, leave out line 20 and insert—

'30

47 or 48 (twice)

824 or 825 of the principal Act or section 47'.

60 Schedule 29, page 1002, line 24, leave out '349' and insert '350'.
61 Schedule 29, page 1003, line 6, leave out '(6)' and insert '(5)'.
62 Schedule 29, page 1003, line 7, leave out 'that subsection' and insert 'section 615(3) of that Act'.
63 Schedule 29, page 1003, line 9, leave out '(6)' and insert '(5)'.
64 Schedule 29, page 1003, in column 3 leave out lines 15 and 16 and insert 'section 102, 113(5), 263(5) and (6), 343(10) or 783(9) of the principal Act, or paragraph 22 of Schedule 7 to the Income and Corporation Taxes Act 1970, or'.
65 Schedule 29, page 1003, line 19, in column 3, at beginning insert 'sections 6 to 12 and'.
66 Schedule 29, page 1003, line 26, leave out '5(3)' and insert '5(4)'.
67 Schedule 29, page 1004, line 6, leave out 45(3)' and insert '5(4)'.
68 Schedule 29, page 1004, line 12, in columns 2 and 3, leave out '286(4) 419(3)' and insert '286(5) 419(4)'.
69 Schedule 29, page 1004, leave out line 22.
70 Schedule 29, page 1005, line 2, after '204' insert '(three times)'.
71 Schedule 29, page 1005, leave out line 6 and insert—

'last para.

from "11" to "to the principal Act"

102, 113(5), 263(5) and (6), 343(10) and 783(9) of the principal Act, to paragraph 22 of Schedule 7 to the Income and Corporation Taxes Act 1970'.

72 Schedule 29, page 1005, line 10, in column 2, at beginning insert 'Chapter'.
73 Schedule 29, page 1005, line 10, in column 3, leave out 'III of Part XII' and insert 'section 468'.
74 Schedule 29, page 1005, line 11, in column 3, at beginning insert 'section'.
75 Schedule 29, page 1005, line 16, in column 2, at beginning insert 'Chapter'.
76 Schedule 29, page 1005, line 16, in column 3 leave out 'III of Part XII' and insert 'section 842'.
77 Schedule 29, page 1005, leave out lines 24 and 25 and insert—

'540(2)

1979

1979 and any reference in this Act to the Taxes Act 1988 is a reference to the Income and Corporation Taxes Act 1988'.

78 Schedule 29, page 1006, leave out line 22 and insert—

'44(6)

63 of the Finance (No. 2) Act 1987

404 of the Taxes Act'.

79 Schedule 29, page 1006, line 23, leave out 'the Taxes Act 1988' and insert 'that Act'.
80 Schedule 29, page 1007, line 10, after of insert 'Part XIV of.
81 Schedule 29, page 1007, line 12, at end insert—

para. 13

533 of the Taxes Act

839 of that Act'.

82 Schedule 29, page 1007, line 17, at end insert—

'69(4)

80

34

134(2)

1970

1988'.

83 Schedule 29, page 1009, line 6, in column 1, leave out '(b)'.
84 Schedule 29, page 1009, line 6, in column 2, leave out '(twice)' and insert '(three times'.
85 Schedule 29, page 1009, line 11, leave out line 11 and insert—

'para. 3(1)(d)

section 174

sections 388 and 389'.

86 Schedule 29, page 1009, line 16, leave out '349' and insert '350'.
87 Schedule 29, page 1009, line 20, leave out '349' and insert '349(1)'.
88 Schedule 29, page 1010, line 20, leave out '238(1)' and insert '231(5)'.
89 Schedule 29, page 1010, line 22, leave out '701(8)' and insert '701(9)'.
90 Schedule 29, page 1010, line 23, leave out '59(10)' and insert '58(10)'
91 Schedule 29, page 1011, line 2, leave out '41(3)' and insert '41(2)'.
92 Schedule 29, page 1011, line 12, at end insert—

'1(2)

Taxes Act

Taxes Act 1970 and Part VIII of the Taxes Act 1988'.

93 Schedule 29, page 1011, leave out line 17.
94 Schedule 29, page 1011, leave out line 20.
95 Schedule 29, page 1012, leave out lines 4 and 5 and insert—

'74(2)

sub-paragraph (6) of the said paragraph 5

section 427(4) of the Taxes Act 1988.

74(2)

sub-paragraph (2)(b) of that paragraph

section 426(2)(b) of that Act

74(5)

formed part of the said paragraph 5

were included in sections 426 to 428 of the Taxes Act 1988.'.

96 Schedule 29, page 1012, line 9, at end insert—

'89(1)

paragraph 1 of the said Schedule 8

section 251(2) of the Taxes Act 1988'.

97 Schedule 29, page 1012, leave out line 15.
98 Schedule 29, page 1012, line 18, leave out '125(8)' and insert '124(8)'.
99 Schedule 29, page 1012, leave out line 21.
100 Schedule 29, page 1013, line 2, at end insert—

'155(2)

42(1)(2)

282(1) and(2)'.

101 Schedule 29, page 1013, leave out lines 22 and 23.
102 Schedule 29, page 1013, line 26, in column 2, at beginning insert 'subsections'.
103 Schedule 29, page 1014, line 2, at end insert—

'64(9)(b)

154(2) or 155(1) of the Taxes Act

113(2) or 114(1) of the Taxes Act 1988'.

104 Schedule 29, page 1014, line 3, leave out '66' and insert '65(5), 66(5)'.
105 Schedule 29, page 1014, line 3, leave out "Income and Corporation".
106 Schedule 29, page 1014, line 5, at end insert—

'73(6)

533 of the Taxes Act

839 of the Taxes Act 1988'.

107 Schedule 29, page 1014, line 7, leave out '108(8)(b)' and insert '108(8)(b)'.
108 Schedule 29, page 1014, line 19, leave out '213(2)(a)'and insert '231(3)(a)'.
109 Schedule 29, page 1014, line 21, leave out '213(1)' and insert "213(2)'.
110 Schedule 29, page 1914, leave out line 25 and insert—

'84(2)

(4) of section 481

(5) of section 745

84(2)

481(1)

745(1)'.

111 Schedule 29, page 1015, line 10, in column 3, leave out '345(1)(a)' and insert '345(1)'.
112 Schedule 29, page 1015. leave out lines 15 and 16.
113 Schedule 29, page 1015, line 20, at end insert '1988'.
114 Schedule 29, page 1015, line 22, at end insert '1988'.
115 Schedule 29, page 1015, leave out lines 23 and 24.
116 Schedule 29. page 1016, line 9, at end insert—

'12, para. 3(3)(b)

341 of the Taxes Act

488 of the Taxes Act 1988

3(3)(e)

Chapter III of Part XI of the Taxes Act

Part XI of the Taxes Act 1988

3(3)

533 of the Taxes Act

839 of the Taxes Act 1988'.

117 Schedule 29, page 1016, leave out lines 15 to 19.
118 Schedule 29, page 1016, line 23, after 'the' insert 'Income and Corporation'.
119 Schedule 29, page 1016, line 24, in column 3, after 'the' insert 'Income and Corporation'.
120 Schedule 29, page 1016, line 24, at end insert—

'8, para. 11(2)

533 of the Taxes Act

839 of the Income and Corporation Taxes Act 1988'.

121 Schedule 29, page 1017, line 17, at end insert—

'113(8)

532 of the Taxes Act

838 of the Taxes Act 1988'.

122 Schedule 29, page 1017, line 27, in column 2, at beginning insert '(5) of section'.
123 Schedule 29, page 1017, line 27, in column 3, at beginning insert '(6) of section".
124 Schedule 29, page 1018, leave out line 4.
125 Schedule 29, page 1018, line 5, at end insert—

'12(2)(c)

II of Part I of the Finance (No. 2) Act 1987

IV of Part XIV of the Taxes Act 1988.

13(4)(b)

the Finance Act 1978

Schedule 9 to the Taxes Act 1988

21(3)

230 of the Taxes Act

657 of the Taxes Act 1988.

72(4)

Finance Act 1978

Taxes Act 1988.

86(3)

Finance Act 1978

Taxes Act 1988'.

126 Schedule 29, page 1018, line 9, at end insert—

'96

234(3) of the Taxes Act

210(4) of the Taxes Act 1988".

127 Schedule 29, page 1018, leave out lines 12 and 13 and insert—

'151(1)

218 of the Taxes Act

615(3) of the Taxes Act 1988'.

128 Schedule 29, page 1018, line 19, in the second column, at end insert 'of the Taxes Act'.
129 Schedule 29, page 1018, line 19, in the third column, at end insert 'of the Taxes Act 1988'.
130 Schedule 29, page 1018, leave out line 21 and insert—

'174(1)(a)

VII of Part II of the Finance Act 1984

V of Part VII of the Taxes Act 1988

174(1)(a)

92(3)

757(3)

174(1)(b)

1 of Schedule 9 to the Finance Act 1984

4 of Schedule 4 to that Act

174(1)(b)

2(2)

7(2)

178(1)

358 of the Taxes Act

468 of the Taxes Act 1988

204(5)

from "478" to "1981"

739 or 740 of the Taxes Act 1988

272

52 of the Finance Act 1974

519 of the Taxes Act 1988

272

the definition of the Taxes Act

"the Taxes Act 1970" means the Income and Corporation Taxes Act 1970;

"the Taxes Act 1988" means the Income and Corporation Taxes Act 1988;'

131 Schedule 29, page 1018, line 26, at end insert—

'68(7)

Taxes Act

Income and Corporation Taxes Act 1970".

132 Schedule 29, page 1019, line 5, after '5(4)(a)' insert '.6(d).
133 Schedule 29, page 1019, line 5, at end insert—

'19, para 16(3)

from "Part I" to "1983"

Chapter III of Part VIII of the Taxes Act'.

134 Schedule 29, page 1019, leave out lines 23 to 26.
135 Schedule 29, page 1020, line 4, at end insert—

'In the Housing Associations Act 1985 c.69

Section

—

—

62(2)

341

488

62(2)

1970

1988'

136 Schedule 29, page 1020, leave out lines 14 to 17.
137 Schedule 29, page 1020, line 21, at end insert—

'69(6)

535 of the Taxes Act

841 of the Taxes Act 1988'.

138 Schedule 29, page 1020, line 22, leave out '65(8)' and insert '78(9)'.
139 Schedule 29, page 1021, line 8, at end insert—

'In the Insolvency Act 1986 c.45

Sch. 6

—

—

para. 1

204 of the Income and Corporation Taxes Act 1970

203 of the Income and Corporation Taxes Act 1988

para. 2

69 of the Finance (No. 2) Act 1975

559 of the Income and Corporation Taxes Act 1988'

140 Schedule 30, page 1033, leave out lines 15 to 18.
141 Schedule 30, page 1033, line 38, leave out from 'which' to 'immediately' in line 39 and insert 'paragraph 9 or 17(1) of that Schedule applied'.
142 Schedule 31, page 1036, leave out line 6.
143 Schedule 31, page 1038, line 3, at end insert—

'1979 c. 14.

Capital Gains Tax Act 1979

Section 155(5). In Schedule 7,

paragraph 5; in paragraph 8, in Part 1 of the Table, the entries relating to sections 265, 352 and 526 of the 1970 Act, the Finance Act 1972, section 29 of the Finance Act 1970, section 67 of the Finance Act 1976 and section 45 of the Finance Act 1977, and paragraph 3 in Part II of the Table; and in paragraph 9 the entries relating to sections 186, 246, 265, 266, 305, 352, 359, 360, 474, 488 and 489 of the 1970 Act, the Finance Act 1972, the Finance Act 1973, sections 26 and 30 of the Finance Act 1974, section 42 of and Schedule 8 to the Finance (No. 2) Act 1975, section 67 of the Finance Act 1976 and the Finance Act 1978 (except section 64(5).'.

144 Schedule 31, page 1039, in column 3, leave out lines 32 to 35 and insert 'Section 50(10)(a) and (c).'.
145 Schedule 31, page 1039, line 53, in column 3, leave out'(d)'and insert '(e)'.
146 Schedule 31, page 1040, line 9, in column 3, leave out 'and 21 to 23' and insert', 21 and 22'.
The Lord Chancellor: My Lords, with the leave of your Lordships, I beg to move that this House do agree with the Commons in their Amendments Nos. 1 to 146.
Your Lordships will be aware that the Income and Corporation Taxes Bill is a very large consolidating statute. It has been produced against a fairly tight timetable in order that the printed Act should be available to those with an interest in these matters—and that encompasses rather a lot of people—before the date of the next Budget. The result of this is that the checking process has had to be continued throughout the stages of the progress of the Bill through this House and through the other place. The Joint Committee of both Houses considering the matter had a number of amendments before it which it accepted and agreed to. The checking process has gone on since then and the result is these Amendments Nos. 1 to 146.
The amendments are technical, mainly drafting and correcting amendments, some to take account of
1200
legislation which was in course when the Bill was being considered. My noble and learned friend Lord Oliver of Aylmerton, the chairman of the Joint Committee on consolidation has seen these amendments, and I understand that he is satisfied that they may properly be made. I am very happy to seek to explain to your Lordships any individual amendment if any noble Lord should desire that. However, it may be felt that the amendments are of a character so technical that you would not wish me to explain each individually. It is in that expectation that I have asked leave of your Lordships to move them en bloc.
Moved, That this House do agree with the Commons in the said amendments. (The Lord Chancellor.)
Lord Bruce of Donington: My Lords, we on this side are obliged to the noble and learned Lord for his explanation of the Commons Amendments. As he said, they are quite numerous and so far as one can gather, they are technical where they are not drafting. We are very much obliged for the efforts that have been made to bring the Bill into its final form and in advance of the Chancellor's Budget Statement. That will facilitate matters in the Budget Statement which fall to be considered by the legal and accountancy professions, and we are accordingly grateful.
The Lord Chancellor: My Lords, I am extremely grateful to the noble Lord, Lord Bruce of Donington, for his helpful intervention. The Government—especially those who were involved in this very large exercise—will be grateful for his kind remarks.
On Question, Motion agreed to.

Legal Aid Bill [H.L.]
3.38 p.m.
Report received.
Clause 1 [Basic definitions and other preliminary provisions]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 1:
Page 1, line 7, at beginning insert—
("( ) It is the purpose of this Act to promote and secure the provision of a legal aid scheme, whether by means-testing or otherwise, designed to assist those who are financially disadvantaged in procuring access to legal advice, assistance or representation.").
The noble and learned Lord said: My Lords, as the Legal Aid Bill stands now, it has one serious omission. It contains no definition of its purpose. The Long Title simply says:
"An Act to make new provision for the administration of, and to revise the law relating to, legal aid, advice and assistance."
In Clause 2 the Bill merely gives the Legal Aid Board the general function of securing that advice, assistance and representation are available in accordance with the statute and with administering the Bill when enacted.
The purpose of the legal aid scheme is clearly to ensure that people of insufficient means are not denied access to justice on account of their lack of

1201
means. To use an old English expression, it is to ensure fair play. It is also a necessary piece of social insurance. If people cannot find a remedy at law for their disputes and grievances, there is a risk that they will take the law into their own hands with highly undesirable and expensive consequences.
The Lord Chancellor's Legal Aid Advisory Committee put the matter so well when it stated:
"If the rule of law and equality before the law lie at the heart of the social system, then equally legal aid lies at the heart of the legal system.".
Although the need for a legal aid scheme may be self-explanatory, the need for including a statement of purpose of the scheme in the Act arises because, in order to establish and give effect to the legal aid scheme, a large number of regulations are to be made under it. A clear statement of purpose will provide a standard against which each regulation made under the Act can be measured.
In Committee the noble Baroness, Lady Faithfull, moved an amendment which had support in all parts of the House but which failed to find favour for two reasons. First, it sought to put upon the Lord Chancellor a duty to promote and secure the legal aid scheme. Secondly, it contained what was thought to be too general and imprecise a yardstick of relevant means. At the end of the debate the noble and learned Lord the Lord Chancellor said most helpfully, as always, that he would endeavour to produce, with assistance,
"a statement in the simplest terms that we can devise, which 1 hope will be comprehensible, of the purpose of the Bill"—[Official Report, 14/1/88: col. 1368.].
My noble friend Lord Mishcon and I had a shot at a draft which we tabled and which is this first amendment. Since it was tabled the noble and learned Lord the Lord Chancellor has, by letter, kindly informed me and other sponsors of the noble Baroness's amendment that to produce a simple and comprehensive statement of the Bill's purpose has proved a difficult task. He further said that he would not have an amendment of his own ready for the Report stage but that he was hopeful that it would be possible to devise a suitable clause. If his hopes were borne out, he would table the amendment at Third Reading. Characteristically, he added:
"I hope you can bear with me till Third Reading.".
We can certainly do that. In view of the indications given by the noble and learned Lord, I shall be asking leave to withdraw the amendment. In the meantime, my noble friend and I hope that the House may find the amendment, and our shot at stating the purpose, acceptable. We shall hear the reactions of the noble and learned Lord to that matter in the fullness of time. In the meantime, I beg leave to withdraw the amendment.
I am now told that I should proceed with the amendment in order to obtain the reactions of the noble and learned Lord, although that has been indicated in the communication that he gave me leave to quote. However, I am always willing to take advice from the noble and learned Lord, Lord Mishcon, whether he be learned or not. I beg to move.
The Lord Chancellor: My Lords, I am grateful for the introduction of this matter by the noble and learned Lord, Lord Elwyn-Jones. It has proved to be a fairly difficult task but, as I stated in the letter read to your Lordships, I am hopeful that at Third Reading we shall be able to bring forward a satisfactory statement of purpose clause.
I am extremely grateful to the noble and learned Lord, Lord Elwyn-Jones, and to the noble Lord, Lord Mishcon, for promoting this amendment. I am glad to say that I have also been in receipt of help from other quarters. We shall endeavour to make the best possible use of all that help. I fear that I cannot accept the present proposal with complete certainty that it is 100 per cent. in accordance with what is desired by those assisting me in the drafting of the Bill. However, I assure your Lordships that it will be taken into account.
Lord Elwyn-Jones: My Lords, in those leave to withdraw the circumstances, I beg amendment.
Amendment, by leave, withdrawn.
3.45 p.m.
The Lord Chancellor The Lord Chancellor moved Amendment No. 2:
Page 1, line 20, leave out from ("Representation") to ("and") in line 22 and insert ("means representation for the purposes of proceedings").
The noble and learned Lord said: My Lords, this is a technical drafting amendment. The definition of representation as it currently stands refers to,
"proceedings to which any Part or provision of a Part of this Act applies".
As such, it looks forward to the introductory provisions of Parts III, IV, V and VI which all begin with a definition of their application. Part II, however, does not. This amendment puts it beyond doubt that the definition of representation in Clause 1 applies to Part II. I beg to move.
Lord Mishcon: My Lords, we on these Benches are happy to accept the amendment.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 3:
Page 2, line 30, leave out subsection (10).
The noble and learned Lord said: My Lords, I think that it would be right to explain Amendment No. 3 in conjunction with Amendments Nos. 5, 51, 57, 58, 59 and 60. The principal amendment in the group is Amendment No. 58 which introduces a new clause to be inserted after Clause 33. All the amendments taken together are intended to fulfil undertakings I gave during the Committee stage to consider making certain regulation-making powers in the Bill subject to affirmative resolution procedure. With your Lordships permission, I should like to speak to all the amendments together in order to explain the principle on which I have sought to proceed. The amendments to Clauses 1, 2, 32 and 33 and the amendment to Clause 43 are consequential to the new clause.
I have sought to provide that those regulation-making powers dealing with, first, the transfer of new

1203
functions to the board; secondly, the scope of the advice and assistance scheme; thirdly, the scope of civil legal aid; and fourthly, the restriction of the individual's choice of solicitor to a panel solicitor, shall be subject to affirmative resolution. Those, I believe, are the man powers that concerned your Lordships at Committee stage. I believe that, by these amendments, I have gone a very long way towards meeting those concerns.
I have to say, however, that in consideration of the arguments advanced in Committee. I think I have now gone far enough. I should like to speak further on that topic because there are a number of other amendments seeking to extend still further the affirmative procedure. I cannot believe that it is a sensible use of your Lordships' time to seek to debate the majority of what already are, and will continue to be, very detailed regulations.
At an earlier stage of the proceedings, the noble and learned Lord, Lord Denning, pointed out how bulky are the existing regulations. Noble Lords will see the blue legal aid handbook to my right and will note how bulky it is. That is the present legal aid system. The noble and learned Lord, Lord Elwyn-Jones, said on Second Reading that he had counted some 56 regulation-making powers in the present Bill, which of course consolidates the previous legislation to some extent. That figure, since I am fond of figures, prompted me to see how many regulation-making powers were in the previous legislation. In the 1974 and 1982 Legal Aid Acts there are something like 60 equivalent powers to make regulations or schemes. Accordingly, if one is seeking to measure the achievement of this Bill in relation to the amount of regulation-making power for the legal aid system as a whole, I have achieved a substantial reduction—something of the order of 10 per cent.—which I hope your Lordships may feel is to be commended.
However, it is right to say that, as these figures show that legal aid has from the start been thought of as a system which would require to change to take account of changing circumstances, and as your Lordships' time for primary legislation is not so freely available that we could hope to come here every year with a new Legal Aid Bill to take account of changing circumstances, it is appropriate that the detailed matters should be dealt with by regulation. Secondly, it is right that these regulations should be subject to parliamentary scrutiny, and every single regulation-making power in this Bill is subject to parliamentary scrutiny. However, there is room for distinction between the affirmative and the negative resolution procedure in matters of this kind.
What I have sought to do in this amendment, taking account of the arguments that were deployed so powerfully in Committee on each of the powers, is to make subject to the affirmative resolution procedure those regulation-making powers which would seem to call for some explanation to he given to your Lordships before you were asked to make a decision. On the other hand, there are many detailed matters of regulation which it would be right to leave to see whether there was anything controversial in them.
In that event your Lordships could raise such controversy in the negative resolution procedure. Therefore, in my submission, we have now reached a reasonable balance between the affirmative resolution for those particular and rather special regulation-making powers where an explanation would be called for and those where one would not. Nothing could be worse than to waste your Lordships' time by unnecessary explanations of uncontroverial matters, and that is what might be forced on the House if we extended the affirmative resolution procedure further. For those reasons, I commend this series of amendments to your Lordships and beg to move Amendment No. 3.
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble and learned Lord for the great care with which he has considered a matter of considerable importance to the House. Where we are dealing with matters of significance affecting the subject, it is essential that Parliament should make proper scrutiny of them. Indeed, where the subject's rights are affected, frankly it would be preferable if it could all be set out in primary legislation.
However, I appreciate the point which he has made that that would inevitably tend to lengthen proceedings and time of course is one of the most precious of parliamentary commodities. Therefore the most important part of the submissions we made on this point has to a substantial degree at any rate been met by the noble and learned Lord, although I did not expect to have to deal with all the amendments at the same time and it may therefore be that on one or two we shall still seek to raise some questions and keep them in reserve.
The significant proposals—if I may put it in that way perhaps against my own interests— and the measures of importance calling for careful parliamentary scrutiny are now to be made subject to the affirmative resolution procedure. Short of primary legislation, that is the best way to proceed. I quite see, for example, when we come to look, as we shall shortly, at Amendment No. 6 dealing with board members, subsection (8) refers to the powers exercisable by statutory instrument, which are significant powers, whereas subsection (8A) refers merely, if I have it right, to a power to alter the number of board members. On the latter, one would not want the whole panoply of affirmative resolution and I see the sense of proceeding in the way proposed.
I reserve the possibility at any rate, putting it no higher than that, that when we come to the individual orders or regulations we may find it necessary to raise some questions. However, subject to that, I welcome the proposal of the noble and learned Lord, which goes some of the way to meet the wishes both of the noble Lord, Lord Hooson, who spoke on this matter, and of my noble friend and I.
Lord Hooson: My Lords, I think that the Lord Chancellor has made a very important statement this afternoon in support of these amendments. It is always a matter of concern as to where the distinction should be drawn between those matters which should properly be the subject of affirmative resolution and

1205
those which as a matter of common sense and convenience should be the subject of negative resolution. It seems to me that the line must be drawn somewhere. Where the provision for subsidiary legislation concerns principles which affect the particular rights of the individual in the country, I think the resolution should be an affirmative one. Where it is obviously a matter of mere detail—and much legal aid legislation, like other modern legislation, is—it is right and proper that it should be dealt with by the negative resolution procedure.
Like the noble and learned Lord, Lord Elwyn-Jones, I cannot give a blanket welcome to everything the Lord Chancellor said, but as far as I have been able to follow the details—and I do not pretend to have mastered the details of this Bill—where he has indicated that he is changing the provisions to allow for affirmative resolution, it seems to me that he is following a principle to be derived from the powers that have been reserved in the Bill.
Where the line is to be drawn is a matter which concerns not only this Bill but legislation generally. Although in theory we are all in favour of affirmative resolutions, in practice it would be impossible, particulary with our present procedures, to have affirmative resolutions on all these subjects. However, from these Benches I warmly welcome the statement of the noble and learned Lord.
Lord Renton: My Lords, knowing how reluctant the managers of government business are in both Houses to agree to there being affirmative procedure rather than negative, I am sure that my noble friends on these Benches agree with me when I say that we should not only be grateful to my noble and learned friend but we should congratulate him on the persuasion that he must have used. If I may say so, I think his choice of the various items for affirmative resolution is significant and important. The scope of legal aid and advice, for example, will be subject to affirmative resolution, as will the extent of representation under Clause 13(2) which is going to be a vital part of the scheme. I join in the welcome that has been given to this series of amendments.
4 p.m.
The Lord Chancellor: My Lords, I am extremely grateful to noble Lords who have welcomed these amendments. Of course I entirely accept that the noble and learned Lord, Lord Elwyn-Jones, and the noble Lord, Lord Hooson, may want to reserve their position with regard to individual amendments. I have sought to explain mmy amendments together for the reason that the principal amendment comes very late. It is a new clause to provide, in effect, for the affirmative resolution procedure since there was no such clause in the original Bill. Therefore I am grateful for what has been said and I will be happy to try to deal with any matters of detail that may still arise when amendments proposed by noble and noble and learned Lords are reached. In the meantime I am grateful for the present welcome.
On Question, amendment agreed to.
Clause 2 [The Legal Aid Board]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 4:
Page 3, line 25, at end insert—
("( ) The Lord Chancellor shall consult the General Council of the Bar with a view to the inclusion on the Board of at least two barristers.
( ) In appointing persons to be members of the Board the Lord Chancellor shall have regard to the desirability of securing that the Board includes persons having expertise in or knowledge of—

(a) the provision of legal services;

(b) the work of the courts and social conditions; and

(c) management.").

The noble and learned Lord said: My Lords, those noble Lords who have been following these debates will recollect that I said on Second Reading that the reason we did not have a provision for two members of the Bar in the Bill as presented was that there was some doubt whether it would be feasible to arrange for two members of the Bar to take part in the work of the Legal Aid Board considering the nature of what we anticipated the burden of that work might be. Obviously it would be silly to have a provision in the Bill that the board should contain at least two barristers if one could not be certain that one could obtain such persons to serve on the board. That would frustrate the whole system. On the other hand, I made it perfectly plain that I wished to have at least two barristers on the board if that was feasible.
This position may be very clear to your Lordships but it may not he quite so clear to persons who have not had the privilege of following all our debates and therefore it may be open to misunderstanding in some quarters. In order to try to cope with that I sought advice on whether we might have a clause which showed my intention but did not have the restrictive effect to which I referred. This amendment is intended to have that effect and provides that the Lord Chancellor shall consult the General Council of the Bar with a view to the inclusion on the board of at least two barristers.
My fervent hope is that this consultation will have the effect that at least two barristers will be on the board. The consultations with the Bar Council have been continuing as these matters have been going through this House and I hope that we shall be able to have two barristers on the Legal Aid Board. That would be extremely useful but just in case it does not happen we have the clause in this form. I beg to move.
Lord Elwyn-Jones: My Lords, again I am most grateful, speaking for this side of the House and certainly for the members of the Bar, among whom by some curious chance I still find myself.
The noble and learned Lord has most graciously acceded to the representations that have been made. I quite see that if there was a risk and no two members of the Bar would be available, or perhaps not even one, to perform the duties, not even the noble and learned Lord could command the impossible. However, the information I have received is that there will be a ready willingness to comply with what he hopes for; namely, the willingness of two members of the Bar at least to serve on the Bar Council. I am sure that that can be achieved. In the meantime I again express our gratitude to the noble and learned

1207
Lord for the manner in which this issue has been dealt with.
Lord Hooson: My Lords, in the temporary absence of my noble friend Lord Meston who dealt with this matter during the Committee stage, may I from these Benches welcome this amendment, couched as it is in the most felicitous and diplomatic terms. The noble and learned Lord is to be congratulated on the way that he has solved this problem and met the various representations made to him.
Lord Hailsham of Saint Marylebone: My Lords, may I very respectfully make a point to my noble and learned friend on the Woolsack which I trust he will not find to be pedantic? I have nothing at all against this amendment in principle but I question the use of the word "expertise", which by my book is not respectable English. It does not occur in the Oxford English Dictionary. It does occur in the supplement and in Collins but with totally different and inconsistent meanings.
I suggest to my noble and learned friend that if he means "specialist knowledge, experience or skill" he should say so and that the word "expertise" should be expurgated. The trouble with these novel Gallic imports into our language is that they seldom mean the same thing to everybody and, what is more, they constantly change their meaning from one moment to the next. It is important that the courts, if they are to interpret the Bill, should be sure of what the word means.
Lord Renton: My Lords, with deep humility—
Lord Simon of Glaisdale: My Lords, my noble and learned friend on the Woolsack in moving this amendment indicated that what he wants after consultation is two barristers on the board. My noble and learned friend Lord Elwyn-Jones took that as meaning two members of the Bar Council which would, I should have thought, be much more difficult to secure. Perhaps that point could be cleared up.
Lord Elwyn-Jones: My Lords, if the noble and learned Lord will allow me, I did not suggest that. I certainly did not have it in mind.
Lord Renton: My Lords, I leave aside the point made by my noble and learned friend Lord Hailsham. On the question of the availability of counsel of experience, knowledge and good standing to attend meetings of the Legal Aid Board, that will depend mainly upon the times at which they are held.
It may be of some comfort to my noble and learned friend the Lord Chancellor to be reminded that meetings of the Senate of the Bar Council and meetings of the Benches of the Inns of Court have always taken place after court hours. I have never known them start before five o'clock in the evening. I cannot speak with the same knowledge of meetings of the Law Society but I imagine that they also tend to be in the later part of the day's work. If the board arranges its meetings fairly late in the day, I do not think that it will be difficult to get the most respected members of the Bar to serve.
Baroness Phillips: My Lords, I raise a slightly mundane matter which only a lay person could intrude into this rarified atmosphere. My understanding is that barristers and solicitors receive rather different fees. Why is it necessary to have two more on this board? Will their advice and information be different? Why is it necessary to have two more, shall we say, highly qualified people? Solicitors will hate me for this! There is no doubt that the make-up of a board such as this has a germane function in relation to people at the grass roots and it would be unfortunate if it is made more costly to operate.
The Lord Chancellor: My Lords, perhaps I may take first the question posed by the noble Baroness, Lady Phillips. The Legal Aid Board will have responsibilities which are central to the work of solicitors and of the Bar. Hitherto solicitors and barristers have played a very significant and important role in the discharge of the responsibilities for the administration of legal aid; for example, the granting of legal aid applications, refusing them and so on.
My noble and learned friends Lord Hailsham and Lord Havers and myself all agree that it is right that members of the solicitors' branch of the legal profession and barristers should be an important part, but not by any means the whole, of the Legal Aid Board. It was only because of practical difficulties in being certain of securing the services of at least two barristers that there was not a provision in the original Bill on the same lines as for solicitors.
As regards remuneration for members of the board, that will I hope be determined by reference to board membership. I do not anticipate at the present moment that it will be necessary to distinguish between the individual members in respect of their skill, experience or knowledge. I shall try to avoid for the moment the word used in the clause. The particular difference to which the noble Baroness referred may not be of vital importance in this connection. I believe that it would be very much in the interests of the success of the board that it should have available to it people who are experienced both as solicitors and barristers.
However that is by no means the whole of the story. I specifically did not draw attention to the second part of the amendment when I moved it because I was acceding to an amendment proposed at Committee stage by the noble and learned Lord, Lord Elwyn-Jones, in relation to that part of the amendment. It was also supported by the noble Lords, Lord Mishcon and Lord Meston. It was that in appointing persons to the board the Lord Chancellor should have regard to a much wider field than the legal profession. It is in this connection that the clause had used the word "expertise" to which my attention was drawn by my noble and learned friend. I shall certainly take account of what he said and I shall seek advice in making an important improvement. As regards the substance of the amendment I am glad to think that your Lordships feel that it is an improvement on what was previously in the Bill.
Lord Mishcon: My Lords, I wonder whether in his consideration of what the noble and learned Lord, Lord Hailsham, said the Lord Chancellor might consider that the absence of the word "expertise" from a dictionary may be a sign of some fallibility in the dictionary and not of the draftsman.
Lord Hughes: My Lords, while the noble and learned Lord is considering the word "expertise", he might care to bear in mind that it does not present any difficulty whatsoever to ordinary people. I doubt very much whether lawyers or judges would find difficulty in understanding what it means.
Lord Donaldson of Kingsbridge: My Lords, "expertise" is a highly bogus word, with a very large number of different shades of meaning. It is most unsuitable.
The Lord Chancellor: My Lords, with the leave of the House I propose to invite my advisers to consider the matter. I hope that I shall be able to bring forward something which will be acceptable to all of your Lordships. As the House is aware, that is not always the easiest thing to achieve.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendment No. 5:
Page 3, line 26, leave out subsection (8).
The noble and learned Lord said: My Lords, Amendment No. 5 is one of a series to which I have already spoken in connection with the affirmative and negative resolution procedure. I beg to move.
On Question, amendment agreed to.
4.15 p.m.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 6:
Page 3, line 26, leave out subsection (8) and insert—
("(8) The powers conferred by subsection (4) above are exercisable by statutory instrument which shall not come into force unless or until approved by a resolution of each House of Parliament.
(8A) The powers conferred by subsection (6) above are exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble and learned Lord said: My Lords, the query that I had has already been dealt with as to the first part. Undoubtedly subsection (8) is covered by the affirmative resolution procedure; subsection (8A) is to be by a process of annulment, and having checked that it relates to the numbers of board members it seems to me in the circumstances that it is not a matter to be pressed further. That can be dealt with adequately by the negative resolution procedure. Accordingly if it is proper for me to do so I shall not move my Amendment.
[Amendment No. 6 not moved.]
Clause 3 [Powers of the Board]:
Lord Mishcon Lord Mishcon moved Amendment No. 7:
Page 4, line 22, at end insert ("and such directions shall include conditions as to the availability to the public, and quality of, advice, assistance or representation, and as to the means for monitoring such availability and quality.").
The noble Lord said: My Lords, your Lordships may well remember that this was an amendment that was dealt with at Committee stage and it was left on the basis that the noble and learned Lord, with his usual courtesy, would have a look at the wording and also at the need for such an amendment to the Bill.
The whole purpose of the amendment was that as regards advice work, if I may put it in that shorthand term, the directions that the Lord Chancellor should give should ensure that the Legal Aid Board would be guarding the proper level and quality of services to be maintained when such work was contracted out. The noble and learned Lord was good enough to say in Committee on 14th January, reported at col. 1417 of the Official Report:
"I understand the point that the noble Lord has made. I am not convinced that it would be necessary to set this as an obligation in respect of all grants and loans as well as contracts. I should be glad to consider further what he has said and to see whether anything further is required to be added to the provisions of the Bill. It was our intention that the Bill should give power to cover this aspect of the matter. I should be happy to consider that further in the light of what he has said if he feels able to withdraw the amendment at the present stage"
In the face of such courtesy and the offer to consider, I at once expressed my gratitude and withdrew the amendment. In the meantime the noble and learned Lord, with further courtesy, has written to me.
I hope that I shall not find it necessary, with his permission, to read the whole of the letter, but I should like to read one little paragraph. I hope I shall read it accurately and that the noble and learned Lord will forgive me if I paraphrase the remainder. The paragraph I wish to read out is this:
"As I said in Committee I am sympathetic to the spirit of this amendment. I therefore tried to consider what you propose as favourably as possible. Unfortunately there are difficulties".
This is where the paraphrase comes in. The difficulties that the noble and learned Lord saw were, first, that it would be preferable for conditions to be drawn up by the board rather than by the Lord Chancellor or his department. Secondly, it would not necessarily be relevant to have directions given in relation to all loans, grants and contracts which will be covered by this amendment. Finally, the noble and learned Lord said that there is always the possibility that if you specify certain directions there are other desirable directions that you omit. I hope that the noble and learned Lord the Lord Chancellor will think that that was an accurate paraphrase of what he was courteous enough to write to me.
This is a very important amendment. I do not have to argue about the desirability of the spirit of it because the noble and learned Lord has conceded that. It must be right, if one can possibly procure it, that in all matters of contracting out the Legal Aid Board should know from the Lord Chancellor and from what Parliament has put in the legislation that standards will be maintained. We still feel that those directions should come not from the Legal Aid Board but from the statute itself. Indeed, the clause implies that the noble and learned Lord the Lord Chancellor would himself put into the directions safeguards which we feel Parliament should put in this Bill.
Perhaps I may quickly deal with the difficulties that the noble and learned Lord saw in the way of agreeing with this amendment. I can do it speedily,

1211
and I bear in mind that this is Report stage. As to the first difficulty, it is quite true that the board would be involved in the detail in regard to contracting out services, but it is the principle under which it must labour by which we say it should be bound in regard to the wording of the statute itself. We say again that this direction should be given by the Lord Chancellor himself.
If the directions were inappropriate in regard to certain loans, grants and contracts, which was the second difficulty, then quite obviously they would not be applicable. Finally, in regard to the fact that there may be other desirable directions which one excludes because one puts down the nature of the directions in the statute and in primary legislation, we have specifically used the word "include" and therefore have not by any means excluded other directions which could be put in.
If the spirit is conceded by the Government—and it is—the House may well feel that it is right that Parliament should take this opportunity on a very important matter to ensure that the standard of the contracting out shall be of the standard that Parliament would want in regard to affording legal aid and advice. I beg to move.
The Lord Chancellor: My Lords, when I wrote to the noble Lord, Lord Mishcon, that the spirit of his amendment was one that I shared, I had in mind that we all wanted the advice and other work done under contracting out to reach an appropriate standard. What this amendment does is create a statutory obligation on the Lord Chancellor in every exercise of the power to which it is affixed to include,
"conditions as to the availability to the public, and quality of, advice, assistance or representation, and as to the means for monitoring such availability and quality".
This applies generally to every action of the board under this power. What I said in my letter and what I say again is that the board will have the first responsibility for doing that. I expect the board to be concerned about the quality of the advice and anything else in respect of which it is handing out money. For example, if it is making a grant to a law centre, which it would be entitled to do under this power, I would expect the board to satisfy itself before it did so that it was an appropriate thing to do. It is quite another matter for me as the Lord Chancellor to have to require it to do something further, over and above what it wants to do. That assumes that the board will not itself have in its mind the concerns which lie behind the noble Lord's amendment. Only if the board does not in its arrangements take proper account of those would any necessity for directions arise.
While I entirely sympathise and agree with what the noble Lord has in mind, this amendment is an unnecessarily rigid and bureaucratic way of achieving it. If we get a good Legal Aid Board, as I sincerely hope we shall, we want to leave it to get on with the job and try to get the operation under way with as little interference from the Lord Chancellor as possible. The less the Lord Chancellor has to do directly with the work of the board and in terms of interfering with it, the better. Therefore, while I
1212
entirely share the object of the amendment—perhaps "spirit" is a slightly ambiguous word in this context—the means that have been chosen are inappropriate and I ask the House to reject the amendment.
Lord Mishcon: My Lords, I know that the noble and learned Lord will accept this as a respectful remark, but I am disappointed, as are my noble friends, with his reply. This an important way—indeed, a vital way—of ensuring the standards of those services which are being contracted out. We feel that this ought to be in primary legislation and that it ought to be the responsibility, if I may respectfully say so, of the Lord Chancellor to give these directions to the Legal Aid Board. It might otherwise be hindered, by the amount of the budget it may have been given, as regards the standards that we all want to see when services are contracted out. In these circumstances, I feel it only proper to test the opinion of the House.
4.27 p.m.
On Question, Whether the said amendment (No. 7) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 129.

DIVISION NO. 1

CONTENTS

Ardwick, L.

Lloyd of Hampstead, L.

Blease, L.

Lovell-Davis, L.

Bottomley, L.

McIntosh of Haringey, L.

Briginshaw, L.

Mishcon, L.

Bruce of Donington, L.

Morton of Shuna, L.

Callaghan of Cardiff, L.

Mulley, L.

Carmichael of Kelvingrove, L.

Murray of Epping Forest, L.

Carter, L.

Nicol, B. [Teller.]

Cledwyn of Penrhos, L.

Northfield, L.

Cocks of Hartcliffe, L.

Oram, L.

David, B.

Parry, L.

Dean of Beswick, L.

Peston, L.

Elwyn-Jones, L.

Phillips, B.

Ennals, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L. [Teller.]

Gallacher, L.

Graham of Edmonton, L.

Prys-Davies, L.

Hatch of Lusby, L.

Serota, B.

Hirshfield, L.

Stallard, L.

Houghton of Sowerby, L.

Stewart of Fulham, L.

Hughes, L.

Stoddart of Swindon, L.

Jacques, L.

Strabolgi, L.

Jeger, B.

Underhill, L.

Jenkins of Putney, L.

Wallace of Coslany, L.

John-Mackie, L.

Wells-Pestell, L.

Kagan, L.

White, B.

Leatherland, L.

Williams of Elvel, L.

Listowel, E.

Wilson of Rievaulx, L.

NOT-CONTENTS

Alport, L.

Blyth, L.

Annan, L.

Borthwick, L.

Arran, E.

Boyd-Carpenter, L.

Auckland, L.

Brabazon of Tara, L.

Barber, L.

Braye, B.

Bauer, L.

Broadbridge, L.

Beaverbrook, L.

Brougham and Vaux, L.

Belhaven and Stenton, L.

Butterworth, L.

Beloff, L.

Caithness, E.

Belstead, L.

Campbell of Alloway, L.

Benson, L.

Campbell of Croy, L.

Birdwood, L.

Carnegy of Lour, B.

Blatch, B.

Carnock, L.

1213

Coleraine, L.

McFadzean, L.

Constantine of Stanmore, L.

Mackay of Clashfern, L.

Cork and Orrery, E.

Macleod of Borve, B.

Cornwallis, L.

Margadale, L.

Cottesloe, L.

Marley, L.

Cowley, E.

Masham of Ilton, B.

Cox, B.

Massereene and Ferrard, V.

Craigavon, V.

Merrivale, L.

Crickhowell, L.

Mersey, V.

Croft, L.

Montagu of Beaulieu, L.

Cullen of Ashbourne, L.

Mottistone, L.

Dacre of Glanton, L.

Mowbray and Stourton, L.

Davidson, V. [Teller.]

Moyne, L.

Denham, L. [Teller.]

Munster, E.

Dilhorne, V.

Nelson, E.

Dundee, E.

Norrie, L.

Elibank, L.

Nugent of Guildford, L.

Elles, B.

O'Brien of Lothbury, L.

Elliot of Harwood, B.

Onslow, E.

Elliott of Morpeth, L.

Orkney, E.

Enniskillen, E.

Orr-Ewing, L.

Faithfull, B.

Oxfuird, V.

Fanshawe of Richmond, L.

Pender, L.

Ferrier, L.

Plummer of St Marylebone, L.

Foley, L.

Reay, L.

Fortescue, E.

Renton, L.

Fraser of Kilmorack, L.

Romney, E.

Gainford, L.

St. Aldwyn, E.

Gardner of Parkes, B.

Saint Oswald, L.

Geddes, L.

Salisbury, M.

Glenarthur, L.

Saltoun of Abernethy, Ly.

Gray of Contin, L.

Sanderson of Bowden, L.

Greenway, L.

Sandys, L.

Hailsham of Saint Marylebone, L.

Selborne, E.

Shrewsbury, E.

Havers, L.

Simon of Glaisdale, L.

Henley, L.

Skelmersdale, L.

Hesketh, L.

Somers, L.

Hives, L.

Strathcona and Mount Royal, L.

Home of the Hirsel, L.

Hood, V.

Strathspey, L.

Hooper, B.

Sudeley, L.

Hylton-Foster, B.

Swansea, L.

Ilchester, E.

Terrington, L.

Johnston of Rockport, L.

Thomas of Gwydir, L.

Kearton, L.

Thurlow, L.

Kimball, L.

Trumpington, B.

Kitchener, E.

Ullswater, V.

Lane-Fox, B.

Vaux of Harrowden, L.

Lauderdale, E.

Ward of Witley, V.

Lindsay, E.

Windlesham, L.

Long, V.

Young, B.

Lyell, L.

Resolved in the negative, and amendment disagreed to accordingly.

Education in Inner London
4.36 p.m.
Baroness Hooper: My Lords, with the leave of the House, I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Education and Science. The Statement is as follows:
"With permission, Mr. Speaker, I wish to make a Statement on the organisation of education in inner London.
"The Government have consistently maintained that a single education authority for inner London could be justified only if that authority gave the children and students of inner London a good education service at an acceptable cost.
"ILEA has patently not done that. Its spending is profligate; its service is poor. Between 1981
1214
and 1988 its spending increased from about £700 million to over £1 billion—while over the same period its pupil numbers have fallen by 15 per cent. It now spends 52 per cent. per pupil more than the outer London boroughs; 45 per cent. more than Manchester; and 83 per cent. more than Birmingham: cities with problems comparable to those of London. This increase in expenditure has in no way been reflected in improved pupil performance, which remains disappointingly low. There is now an urgent need for change.
"ILEA's failure is partly a failure of political will but, it is also a product of its unmanageable size. Its administration is cumbersome, excessively costly and too distant from its clients. The Government want to improve standards of education in London and to bring costs under control. We decided that the way to do this was to enable each inner London council to become the local education authority for its area.
"Our proposals arc incorporated in Part III of the Education Reform Bill. Three boroughs have already stated their intention to apply for LEA status; other boroughs are known to be considering similar action. But as this positive response to our proposals has emerged there has been a growing view that our objectives would be better achieved by a single, orderly transfer of education functions in inner London.
"The Government have reviewed these developments and have concluded that the time is now right to carry through the logic of their proposals in the interests of better standards and of orderly progress. We therefore propose to table amendments to the Education Reform Bill, while it is before the Standing Committee, to wind up ILEA and to secure the transfer of education responsibilities to local councils from 1st April 1990.
"We propose that the arrangements for transfer-ring functions should follow closely those established at the time of the abolition of the GLC.
"A staff commission will be established to facilitate the process of staff transfer. All LEA teaching and non-teaching staff working at individual schools and colleges will transfer by order to the employment of the council concerned. Where appropriate, detriment or redundancy compensation will be available on the terms applying at the time of the abolition of the GLC.
"The arrangements for property transfer will be broadly those set out in the Education Reform Bill. It is likely that the London Residuary Body will be employed to deal with assets which cannot be allocated between boroughs.
"The Education Reform Bill already contains certain counter-obstruction safeguards to protect the interest of the local councils which will be assuming education functions. We shall strengthen these safeguards, introducing the same sanctions as were included in the legislation abolishing the Greater London Council and metropolitan county councils.
"The Government propose that each local council should be required to publish in 1989 as a

1215
basis for local consultation a development plan setting out the way in which it proposes to organise the transfer of responsibilities and the service it would propose to run. The Government will issue statutory guidance on the subjects to be covered by such development plans which will provide the basis for property and staff transfer orders.
"I recognise that some co-operation will be needed between inner London councils for the maintenance of certain aspects of education provision. I hope that in most cases such co-operation will be secured through voluntary arrangements; these might in certain circumstances need to take the form of joint education committees, requiring my approval under existing powers. Were it to become necessary, there are also powers under the Education Act 1944 to enable me to require groups of boroughs to establish joint education committees in respect of particular functions.
"The Government propose to maintain rigorous pressure to control ILEA's expenditure over the next two years. We attach paramount importance to improving the quality of education received by inner London's children. They and their parents have a right to something better. The Government's proposals set out the basis for a more cost effective and responsive education service for inner London."
My Lords, that concludes the Statement.
Baroness David: My Lords, convention impels me to thank the Minister for repeating the Statement, but I have to say that we are deeply shocked by it; we are shocked by the timing and, indeed, by the leaks that have gone on. Since last Friday there have been unseemly debates in the media leading to a major change of policy. In the week when the Education Reform Bill has been guillotined in another place and a timetable agreed for discussion of the remaining clauses, among which are the clauses on ILEA, surely a separate Bill is called for. The proposal comes at a time of heavy legislation when Parliament is already under pressure from an overloaded programme. This proposal was not in the Conservative Party manifesto, nor in the Queen's Speech. The Government have no mandate for it. Have the parents been consulted about this? Have the Churches been consulted about this? Have the teaching staff been consulted about this? The Government have made much of parental involvement in the Education Reform Bill. What parental involvement has there been in this sudden decision?
I remind noble Lords that there was a very full discussion three years ago when the GLC abolition Bill was going through Parliament. It was decided that ILEA should be a directly elected authority. What has happened since then and indeed in the last eight weeks since the Education Reform Bill was published to trigger off such a fundamental change?
ILEA has been criticised for excessive expenditure. The cost per secondary pupil at ILEA is just over £2,000. The DES is paying for assisted places at
1216
Westminster School, costing just over £4,000 a place, and at St. Paul's School, costing just under £4,000 a place. ILEA's size is mentioned in the Statement. This has been accepted by four reviews in the last 10 years, three of them done by this Government. I remind your Lordships of what the noble Lord, Lord Joseph, said as the then Secretary of State for Education:
"The nature, scale and importance of the education service in inner London, taken together, justify a directly elected authority in this special case."—[Official Report, Commons, 5/4/84; col. 1124.]
I repeat,
"The nature, scale and importance".
The effect of the Statement is that the education service in inner London will be handed over, not back, to boroughs with no experience of running an education authority and, some would think, not capable of carrying out such a function. For instance, Kensington and Chelsea would have just one county secondary school in its area. At the same time these councils will be coping with the administration of the poll tax, with new housing legislation and with the privatisation of their services. As to the quality of education, a recent poll in Wandsworth, which I remind noble Lords is a Conservative council, showed a high level of satisfaction by parents with ILEA schools in both primary and secondary education. Over 80 per cent. of parents said that they were satisfied with academic standards.
I wish to ask the Minister some questions. What will happen to special education, adult education and further education in which ILEA has such a good record when this legislation has gone through, if it does go through? Inner city problems may well be exacerbated by the abolition of ILEA. The Government are supposed to be taking a special interest in inner city problems. I suspect that children in inner London are likely to be the sufferers from this political act. Perhaps I may mention the Centre for Young Musicians, which is held at Pimlico School. What will happen to such provisions where children from all over London assemble for the most wonderful teaching and performance?
Have the Government thought through these proposals and their implications? The answer must be no.
4.45 p.m.
Lord Ritchie of Dundee: My Lords, I too wish to thank the Minister in a qualified way for repeating the Statement. I do not think that I have ever been impolite in your Lordships' House hitherto, but I propose to be now, at the expense not of noble Lords but of the Government's proposal.
Let us be frank and say first that the Government have never liked ILEA. It is a large organisation controlled by Opposition parties. That of course does not please them. Now they feel like Macbeth:
"With barefaced power sweep him from my sight".
If small boroughs control education throughout London the Government will more easily be able to control them and will be in a position to divide and rule, which seems to be their growing policy. It will also be convenient for the London Residuary Body to be able to empty County Hall at last, a matter that has been bugging that body for some time past.

1217
As the noble Baroness said, the idea is not a new one. It has been discussed a number of times under this Government in three reviews, to which the Minister referred. On each occasion it was concluded that a unitary education authority was the best for London. The most recent occasion was when the then Secretary of State for Education, now the noble Lord, Lord Joseph, concluded that inner boroughs will not have the right to opt out. He said:
"The Government have decided that there should be a continuing unitary authority for Inner London".
That was only just over three years ago.
In 1985 the Local Government Act established the authority as a directly elected body. It is not two years since the first election. Why the change? We are now told that this will happen within a Bill already before Parliament in which we have been considering very different proposals—to the effect that the boroughs should opt out independently. Now, with the minimum time, we have to consider this much more drastic proposal.
No reference was made in last summer's consultation papers to any detailed study on which the current proposals were based. When I speak of the current proposals, I mean either the proposal for boroughs to opt out individually or for this much more drastic measure. No reference was made in the consultation papers to any research or consultation that has occurred.
I cannot refute offhand the figures quoted in this Statement, but I know that ILEA, for all its faults, has done much excellent work in the time of its existence. I am thinking in particular of the research that it has done: such things as the Fish report into the problems, diagnosis and remediation of children with special education needs. How can this sort of report covering the whole of London be carried out by individual boroughs? Much imaginative and innovative work has been done by the authority. Let us remind noble Lords that it is now doing all it can to restrain the activities of the unions which have caused so much trouble. I am thinking in particular of the Inner London Teaching Association, which the authority is now trying very hard to control.
London has been under a unitary education authority for well over 100 years, since my grandfather introduced the local government Bill in the other place in the 1880s. Throughout the years it was considered that the LCC was a highly efficient organisation, so the reference to the sphere of its control being too great seems to be quite untrue.
What will happen to the poor and deprived boroughs without the cross-subsidy which the Inner London Education Authority was operating? Can one imagine Kensington and Chelsea voluntarily subsidising Hackney? Is the Minister aware that some boroughs are in a state of administrative and financial chaos? Will any research be done to discover whether boroughs are fit to take on full responsibility for education within their bounds? How many councils want to opt out? Has that been discovered? There was a vague pronouncement in the Statement that a number of councils were thinking of it. Of course they are thinking of it, but they may well
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decide that they do not want to do so. Have the parents been consulted, as the noble Baroness, Lady David, asked?
Finally, I have to ask those two Back-Benchers of the Conservative Party who are apparently advocating this policy how much they know about education in London. Has this matter really been thought through? I cannot give more than the barest formality of thanks to the Minister for reading the Statement to us.
Baroness Hooper: My Lords, in thanking the noble Baroness and the noble Lord for their comments, I must say as a preliminary how surprised I am that they were both shocked and forced to resort almost to rudeness. I find it rather difficult to discern this in the case of the noble Lord, Lord Ritchie.
The whole question of the future of ILEA has been debated for some time. There has been strong feeling expressed on many sides and the Government are responding to that strong feeling, not only from people in another place who have tabled Motions but also from many experts. I think we can even quote a Member on the Opposition Benches in this House who has asked for an orderly transfer in a planned and rational fashion.
Lord Strabolgi: Name him.
Baroness Hooper: It is a "her", actually—the noble Baroness, Lady Blackstone. She has been quoted when she spoke at a conference on this matter. She told us that we should have the courage of our convictions and abolish the authority for this very reason—in order to have proper and orderly progress. However, I shall endeavour to respond to the questions raised both by the noble Baroness and by the noble Lord, Lord Ritchie. Perhaps your Lordships will forgive me if perhaps I do not get my responses in quite the right order or put them quite as gracefully as I should wish.
On the question of timing, I should like to point out that the outer London boroughs were set up largely from scratch in 1965, just 20 months after the passage of the London Government (Financial Provisions) Act 1963. The inner London boroughs will have a similar period in which to prepare to assume their new responsibilities, and in doing so they will have the assistance of the staff commission and the residuary body. In addition, my right honourable friend the Secretary of State proposes to set up a special unit in the department to help boroughs to prepare for the transfer of functions and to consult them about the arrangements to be made.
The noble Baroness and the noble Lord referred to our manifesto commitments and to consultation with parents, teachers and the Churches. Apart from the fact that our election manifesto brought in the principle of devolution by giving the right to boroughs to take over responsibiliity for this service, the responses that we have received are such that we have decided that this is a better way of achieving our objectives.
Apart from the fact that there was an explicit reference in the election manifesto which was warmly

1219
subscribed to by the electorate at large, there was a very recent poll on this matter. The noble Baroness referred to a poll in Wandsworth. I should like to refer to the by-election in Wandsworth which took place on 19th November last year, where this issue was brought very much to the fore by the Opposition parties and where we improved our majority. In addition, we believe that the Churches will also welcome the effort to bring in an orderly and rational scheme rather than subscribe to the accusations which we have had directed at us of allowing ILEA to wither on the bough. So there is nothing new about the proposals in terms of what will happen in ILEA. There is simply a different direction.
Both the noble Baroness and the noble Lord referred to special education, further education and, I believe, adult education. As regards specialist provision, of course boroughs must explain in the development plans that they put forward what they wish to do with property that they plan to take over, including plans for continuing specizalist provision. There is something I should like to add to that, because local authorities have and will have a duty to secure adequate provision for children with special education needs. Smaller local education authorities in other parts of the country who do not provide a complete range of schools themselves often co-operate with neighbouring authorities and may use non-maintained special schools and independent schools. We see no reason why boroughs in the inner London area should not co-operate in the same way as boroughs in other parts of the country.
So far as concerns further education and adult education, again, we recognise that these are very important provisions. In terms of cross-boundary movement in this area, there is again perhaps an enhanced problem in the London area. Nevertheless. we believe that this will be met by the possibilities which exist for co-operation between boroughs.
The noble Lord, Lord Ritchie, felt that small boroughs were not going to be able to cope. I should point out to him that there is, in addition to the provisions that have been made, the special unit to which I have referred, the staff commission and the London Residuary Body. Those will enable boroughs which have not had recent experience of education provision to cope. The important thrust behind all the Government's proposals in this Bill is to take back provision and responsbility for education to the grass roots.
Therefore we must look at these proposals in the light of the other proposals of the Bill; for example, the provision for the national curriculum, which will better ensure that standards are maintained on a more balanced level throughout the country, as well as the provisions for financial delegation.
There may not have been a detailed study to which we can refer in that instance—again the noble Lord raised this point—but reviews have taken place steadily over past years. There was the Marshall review in 1977 and there was the Young review in 1981. Those reviews admitted that a unitary authority might be the most appropriate way of dealing with inner London provision of education. However, I must emphasise the second paragraph of
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the Statement where the Government have consistently maintained that a single education authority for inner London could be justified only if that authority gave the children and students of inner London a good education service at acceptable cost.
If one can say that it is acceptable for inner London to provide 4 per cent. of the country's pupils with education costing 8 per cent. of the country's spending, if one thinks it appropriate that ILEA should employ two and a half times more administrators than the average local education authority and if one can agree that ILEA is providing a better service in spending 52 per cent. more per pupil than the outer London boroughs, 45 per cent. more than Manchester and 83 per cent. more than Birmingham, I can only say that it is my turn to be surprised.
In relation to the extravagance and liberal spending, there is little evidence of pay-off in terms of results. Nationally some 53 per cent. of school-leavers have been getting one or more higher grades at O-level; ILEA has just 43 per cent. At A-level the figures is 14 per cent. nationally and 11 per cent. in ILEA. I can even pray in aid the intentions of the present Labour leader of ILEA who has made it clear that it must improve education standards and levels of achievement. Obviously he too thinks that the provision is wanting.
We believe that we are acting in the best interests of all the children in the inner London area in making these arrangements. The arrangements that are made, the plans that are put forward, will be scrutinised very thoroughly, and every possible co-operation will be given by the Department of Education for the smooth and orderly progress of these plans.
5 p.m.
Lord Hailsham of Saint Marylebone: My Lords,
before we lash ourselves into an emotional pother about all this perhaps I may make a brief intervention. I must confess that I was one of the putative fathers of ILEA, I think the only surviving one, from those ancient days when Mr. Macmillan was Prime Minister. In the election of 1959—which I think shows that the noble Baroness, Lady David, perhaps has too short a memory and the noble Lord, Lord Ritchie, too long a memory—our manifesto was to hand over to the boroughs the educational responsibility of the local education authorities in London. It was recognised then that a small central body would be necessary, and the intention was to make it very small.
I think I am the surviving member of the committee which was asked to say how large the central body should be. We came to the conclusion that we did not for any educational reason at all but for a perfectly practical one. Since in central London the London County Council had built its schools as a matter of bricks and mortar without reference to the borough boundaries as they then existed, still less to the boundaries as they exist now, it would be necessary to use the old LCC area as the central authority. If the conclusion is reached that the experiment has been a failure, which I think must be the case but for one question which I have to ask my

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learned friend, there is no reason for the extraordinary outburst of emotion to which we have been subjected.
The question I should like to ask is the bricks and mortar question. The crux of the matter lies in the question of whether by the machinery which the Statement contains, if I understood it correctly, inter-borough education committees can deal with the problem of bricks and mortar and the location at any rate of older educational institutions in central London. If those will work it seems to me this is a long overdue reform. I should like some assurance from my noble friend on the Front Bench that it is thought that this is a viable approach.
Baroness Hooper: My Lords, I am grateful to my noble and learned friend for his intervention. It is certainly true in terms of size that ILEA is the largest local education authority in England. It has therefore developed commensurately large support services. Clearly from some of the examples I have given size does not guarantee effectiveness. In fact the outer London boroughs have been responsible for education for over 20 years, and three of them, Harrow, Kingston and Barnet, achieved better examination results than anywhere else in the country. That is a very hopeful and happy prospect to which to look forward.
On the question of bricks and mortar, perhaps I can respond to my noble and learned friend by saying that boroughs will be required to explain in their development plans which institutions and which property they need to inherit in order to secure adequate provision. This applies in particular to further education, which has been mentioned, because there is a great deal of trans-boundary provision. Where colleges in particular have sites in more than one borough the Government intend that in general they should not be split up but should be assigned to the borough in which they are primarily located. But again there is scope for voluntary agreements and arrangements to be made between boroughs.
Lord Stewart of Fulham: My Lords, I feel that this Statement uses a great many words to tell a very simple story. Since ILEA is to be abolished because it has a Labour majority, just as earlier the Greater London Council and earlier still the London County Council were abolished for the same reason, would it not have been more candid and courageous for the Government to tell us plainly what they are doing and why instead of trying to cover it up with this verbose camouflage?
Baroness Hooper: My Lords, the standard of education available in London is the paramount consideration. We believe that the continued failure of ILEA to put its house in order makes an arrangement such as we are proposing the best way of raising standards for children in inner London. I can only say that there was a lot of fuss and bother about the abolition of the Greater London Council and the metropolitan counties, but who is missing them now?
Lord Boyd-Carpenter: My Lords, as High Steward and a former Member of Parliament for Kingston I should like to thank my noble friend for her graceful and kindly reference to the great education success of the Kingston Borough Council. Arising from that, does that not illustrate the extraordinary situation there has been in recent years in which large and wealthy boroughs such as Westminster, Kensington and Chelsea have not had education authorities, whereas education authorities have existed in much smaller places? I suggest to my noble friend that if education is to be a locally administered service, then it is absurd that such large boroughs should he excluded from the administration of education.
Is my noble friend aware that that logical approach might have been answered if ILEA had been a success? However, as she has made clear, it has been an expensive failure for both children and ratepayers. Therefore, perhaps I may thank her most warmly—and perhaps more sincerely than did the noble Baroness, Lady David—for the Statement and say that my only regret is that such a step was not taken years ago. In particular, I regret that the opportunity which was given by the Local Government Act three years ago when the matter was raised and discussed, was not taken. If it had been, we should now be rid of that monstrous organisation. Perhaps my noble friend can also tell me whether this matter will help to facilitate the eviction of the rump of the ILEA from the buildings across the river.
Baroness Hooper: My Lords, to answer the last point made by my noble friend, there will no doubt be a transitional period with the continued existence of a rump. However, the process will no doubt be speeded up. I am grateful to my noble friend for his intervention underlining some of the comments which have been made and indicating how important and urgent it is to get on with the job now.
Lord Mayhew: My Lords, does the Minister recall that in the ILEA election the Labour Party won less than half the votes but more than three-quarters of the seats? Perhaps some of the problems of ILEA—like some of the problems of local Labour authorities—are created by its unrepresentative nature which is due to the addiction of the Conservative Party to a preposterously undemocratic electoral system. Will the Minister assure us that her party will learn from experience and that the idea of representative democracy will carry some weight in the future?
Baroness Hooper: My Lords, we are learning in relation to ILEA and I can assure the noble Lord that he will have no further problems because there will be no further elections in ILEA.
Lord Callaghan of Cardiff: My Lords, no one could be discourteous to the Minister for the very painstaking way in which she answers our questions. However, I do not think that her amiability can disguise the fact that many of us feel that this is a most discourteous manner of proceeding. If the issue is so important—and it is; it involves the abolition of the largest and most important education

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authority—why is it stuffed in at the Committee stage of a Bill? Why did the Government not bring it forward in the initial stages of the Bill? Is my noble friend Baroness David not right in saying that the matter should be withdrawn and made the subject of a separate Bill when some of the proposals which are being put forward can be properly worked out?
The Minister referred to the possibility of forming joint education committees. Does she have a clear idea as to whether the poorest inner London boroughs will form local education committees? Has not the matter been discussed with them? Have the Government no clear idea of what the government and administration of the schools is to be?
I am sure that the noble Baroness shares with all of us the desire that every one of those children who are in the poorest and most deprived parts of London—that is the reason for the emotion which has been generated on this occasion—should have the best possible education. Does she realise that if we consider any of our large provincial cities, we shall find that the worst examination results are produced in the poorest areas of the city and the best examination results are produced in the Kingstons of the city? If noble Lords do not appreciate that, then they do not understand the fundamental problem.
I ask the Minister to take the matter back to the Government and say that the proposal needs much more careful working out and thought. If we are not careful, we shall leave the poorest authorities with the most inadequate resources and withdraw the strongest elements, without any clear ideas from the Government as to what is to replace them. I do not wish to be offensive when I say that if there is powerful pressure from some Back Benchers in another place and the Government do not know what to do, they say, "Stuff it in the Bill".
5.15 p.m.
Baroness Hooper: My Lords, I thank the noble Lord for his courteous introduction to his comments. However, I must disagree with him. The subject is not a new one which has been brought up overnight. The whole question of ILEA and its future has been under discussion for a considerable length of time. It was a manifesto commitment that action would be taken, and the subject has been well discussed both in the media and in education circles. I do not think that it can be regarded as a sudden move requiring a separate Bill. Furthermore, the new clauses will be introduced at Committee stage in another place. There will be ample time under the guillotine Motion for a discussion. There will be further time for discussion at Report stage. The emphasis must now be on action rather than further discussion.
I share the view of the noble Lord that the interests of the children and students of ILEA are paramount. I have emphasised the fact that the reason for the changes to be introduced is to make sure that educational standards are improved as well as being made more cost-effective.
As regards the comments made by the noble Lord concerning other provincial cities with poor inner city areas and their examination results, I can only say that ILEA's results come below those of other large
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cities with similar socio-economic problems and large inner city areas. As regards the smaller boroughs who have perhaps not been considering the possibility of operating their own education systems as education authorities in the manner of the boroughs which have given us notice of their intention to opt out I say this. We must take all the reforms together and look at the fact that the Government are providing a national basis with a national curriculum for improving and maintaining standards. They are also providing other ways for schools to take more responsibility. Schools, teachers and parents will have more opportunities to be responsible for education in their immediate areas.
Baroness David: My Lords, perhaps I may ask the Minister one question concerning standards. In the Sheffield University league table, which took into account socio-economic conditions, out of 96 local education authorities ILEA came 56th, Oxfordshire was 54th, Waltham Forest was 71st, Essex was 92nd and Bromley was 96th. If other matters are taken into account, ILEA has done pretty well.
Baroness Young: My Lords, I speak as someone who has looked at the problems of ILEA. I welcome what my noble friend has said in her Statement. The fact that the Government have taken a decision removes an uncertainty about the future of a number of London boroughs. We all share the view of the importance of the education of children, not only in inner London but throughout the country as a whole.
Parents are obliged by law to send their children for at least 11 years of compulsory education. One of the most disturbing features of educational life is uncertainty. Now we know that 1st April 1990 is the date from which individual boroughs will be responsible for education in their areas. Perhaps I may say to my noble friend that I think that that is much clearer than the original provisions in the Education Reform Bill as it stands at the present time.
I think that the point made by the noble Lord, Lord Callaghan, about standards is very important. It is true that the standards ILEA fall well below those which we should like to see. It is true that they have to educate some of the poorest and most disadvantaged children. However, inspectors' reports show that children still underachieve and we should see a better result. I believe that devolving downwards (as the Education Reform Bill and this measure propose) will make it more likely that there will he greater parental and other involvement which will help the children in the end. Much will be said; but I should like to welcome this Statement and say that I for one look forward to hearing the details of how it will be worked out. That is something we must look at very carefully.
Baroness Hooper: My Lords, I am grateful to my noble friend for her comments and for underlining the fact that the present proposals remove the uncertainty which existed and which indeed was growing. The Government are carrying on a continuing consultation process on education reform. They are responding not only in this area but in other areas to comments and consultation. I

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apologise to the noble Baroness, Lady David, for not responding immediately to her previous remarks. I do not have the statistics that she mentioned, but I should like to underline the fact that the Labour leader of ILEA himself has said that socio-economic factors are too often used as an excuse for poor achievement.
Lord Peston: My Lords, may I first make this point? The noble Baroness referred to my colleague Lady Blackstone and her remarks on ILEA. In case your Lordships have misunderstood her view, my noble friend was, and is, totally against the abolition of ILEA. Her comment, to which the Minister referred, was simply to the effect that if the Government were against ILEA they should show a little courage by removing it rather than killing it off by the death of a thousand cuts. I make that point just in case there was any misunderstanding of my noble friend's position.
I am a little disappointed at another aspect of the noble Baroness's Statement. My colleague Lady David has made the statistical point about 1LEA's undoubted achievements. I never decry statistics. But my view is that one ought to go and visit some ILEA schools. I hope that noble Lords opposite will occasionally do so. My experience from such visits is that the teachers perform miracles every day of the week. I should have liked to hear the noble Baroness proffer at least some words of support for those teachers. I was most disappointed not to hear such words.
Finally, there is the question of whether this is a genuine decision or a political one. I am always willing to be persuaded by the noble Baroness, but I must ask her what evidence has arisen about performance and costs that would cause the Government to change their mind since the Bill was originally published. If the noble Baroness wishes us to believe that there is no political side to this question and that it is a genuine educational decision, she might well offer us some new evidence to justify that change.
Baroness Hooper: My Lords, I am glad that the age of miracles has not passed. I am grateful to the noble Lord for reminding me to put in a word for the teachers—the very good teachers—who do indeed perform miracles in some of London's schools. I believe that those teachers will welcome these moves because they will be able to continue teaching in the schools and provide education with less interference than was experienced under ILEA.
I shall marry up the noble Lord's first and last points and quote from the statement made by his noble friend, who, I quite accept, might well be against any change at all in ILEA. The noble Baroness, Lady Blackstone, is quoted as saying that this slow dismemberment could not be more damaging to the education of young people in London and therefore the Government should have had the courage of their convictions and met it head on. That is precisely what we are now doing and we expect to receive some support from the noble Baroness.
Lord Plummer of St. Marylebone: My Lords, I welcome this Statement. I was nominally responsible for ILEA for some three years, and perhaps I am the only Member of this House to have held such a position. I can confirm that when we took over ILEA it was then as now cumbersome and excessively costly. It had an ability to spend at an enormous rate and at the same time operated with an inflated staff level which was totally unreasonable. Like the GLC, ILEA has brought about its own doom by poor financial controls, petty policies and, more importantly, by sending pupils from poor and deprived areas out into the world with a poor education. This situation must be ready for reform, and I hope that the Government will press forward with it.
Lord Annan: My Lords, I have very mixed feelings about ILEA. I think that some of the criticisms that have been made of it are quite justified. It has destroyed itself by often taking very partisan views on subjects. My only experience with ILEA concerned its dealings relating to the Polytechnic of North London, which did not reinforce my good opinion of the authority.
Having said that, nobody expects the Government to hold inquiries or carry out research because whenever they do, as in the case of the Peacock report, the research and the report come out in a form which the Government do not like. Even if one does not undertake research, I should have thought that it was politically extraordinarily insensitive to make a Statement which misses the one point which anyone who knows anything about education in London must have in the forefront of his mind; namely, when one removes the rich boroughs how are the poor boroughs to be financed?
The noble Lord, Lord Callaghan, was entirely right to say that it was scandalous that this was not in the forefront of the Statement, and it must confirm people in the view that the Government think of the inhabitants of those poor boroughs as sludge and the schools in them as sinks.
Baroness Hooper: My Lords, I find it very difficult to accept the point made by the noble Lord, because, if he is talking about resources for schooling, there has been no indication that those resources will be reduced. In fact, our aim is that the available resources should be used more cost-effectively.
Baroness Phillips: My Lords, I should like to correct the record with regard to something that has been said by the noble Baroness, Lady Young. I can speak as one who has relatives—my son and daughter-in-law—who are teachers in Catholic schools in London. I can assure the noble Baroness that far from removing uncertainty this will further demoralise staff which is already struggling in appalling conditions. Uncertainty looms up every day. Staff do not know how many teachers will be retained, nor the character of the borough by which they will be taken over. I think that it must be placed on record that whoever else may like this action it is certainly not the teachers of London.
Lord Belstead: My Lords, before my noble friend replies to the noble Baroness, perhaps I may remind your Lordships that there is important business to which we must return. Perhaps it would be the wish of the House to take the noble Baroness's question and a question which I know was coming from behind me and then call it a day and return to the Legal Aid Bill.
Lord Pitt of Hampstead: My Lords, perhaps I may—
Lord Belstead: My Lords, it is precisely because I know that other noble Lords wish to ask questions that I ask what the House would like to do. Let us take the next two questions and we shall know whether your Lordships wish then to return to the Legal Aid Bill.
Baroness Hooper: My Lords, it is difficult to judge competing evidence which is put forward. However, the Government's evidence has been that an orderly and rational progression to the splitting up of ILEA will be the best possible solution that will find acceptance and support among parents and teachers in the boroughs concerned.
5.30 p.m.
Baroness Gardner of Parkes: My Lords, much has been said about the poorest children in London and about how they may be disadvantaged by the abolition of ILEA. Can the Minister inform us that she is aware—as I believe she is—that these are the people who are being so disadvantaged now? The children in the poorest part of Islington—I speak as someone who has practised in that area over a long period—are almost unemployable. If one asks them to put a dozen forms into alphabetical order, they cannot. These are school-leavers. Eighty-five per cent. cannot put 10 or 20 forms into alphabetical order. This means that ILEA has failed those poor children, and when there is a clear option for boroughs such as Westminster, with which I am closely connected, to opt out, they will certainly do so, and there will remain a hopelessly ill-formed ILEA. It will be only the worst of ILEA. Certainty is absolutely essential in these circumstances. Certainty and rapid change are important.
In the abolition of the GLC, because of the time taken over the preliminary Bill which did not go through, uncertainty existed for the two years during the abolition process. This caused great anxiety to staff. It also caused the problems referred to by the noble Baroness, Lady Phillips, of people not knowing what was gong to happen. I believe it is right that the Government have made a definite, formative Statement so that everyone will now know the situation. I also believe that in terms of finance no one living in the so-called wealthy borough of Westminster needs to delude himself or herself that it will not continue to cost Westminster a lot of money. Under all the inter-borough arrangements presently existing for social services, Westminster is still contributing on a rateable basis.
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I therefore believe that there will still be that same element of the rich boroughs subsidising the poor. I represent an outer London borough and I have seen how much better education was there. We saw last year the Audit Commission report on the ineffectiveness of ILEA. I believe that the abolition of ILEA will enable better education and better value to be provided.
Baroness Hooper: My Lords, I am grateful to my noble friend. I have tried to draw your Lordships' attention to the fact that these proposals should not be taken out of the context of the other proposals in the Education Reform Bill. Neither should they be taken out of the context of the proposed new system of local government finance. Any arguments therefore for cross-subsidy of education from one inner London borough to another will no longer apply. We believe overall that the new system will provide a fairer means of distributing resources to local authorities, taking account of local social needs. Boroughs will have an opportunity to examine the cost of education in their areas in this light.
Lord Pitt of Hampstead: My Lords, perhaps I may follow up this point. Is the Minister aware that in inner London the education service is financed by a rate on the whole of inner London? Is she saying therefore that the Government will have the power to rate the whole of inner London in order that it may establish the equality that the Inner London Education Authority now provides?
She spoke very glibly about the way in which the outer London boroughs have settled down. Perhaps I may remind her that the outer London boroughs were always education authorities in the sense that they had delegating powers. Inner London education has always been planned for the whole area. ILEA merely succeeded London County Council. The point that the noble Baroness, Lady David, made seems to have been ignored. Education was planned for London as a whole. There are many boroughs. The noble Baroness, Lady David, instanced a particular borough that had only one county secondary school. It is not isolated. The plan for education in inner London was always for the whole area. Will the Minister say what the Government propose to do about that?
Baroness Hooper: My Lords, in the context of the outer London boroughs perhaps I may remind the noble Lord that they took over not only the education functions but also all other functions. They managed to do that successfully in the time.
On the financial aspect, the new proposals for local government finance will take into account the particular situation of inner London. We believe that the new system will provide a fairer means of distributing resources to the local authorities.

Legal Aid Bill [H.L.]
5.36 p.m.
Consideration of amendments on Report resumed.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 8:
After Clause 4, insert the following new clause:
("Legal services regional committees.
.—(1) The Board shall establish regional committees for legal services, composed of appropriate groups of legal aid areas or any parts of legal aid areas.
(2) The said committees shall consist of bodies representative of the consumers and providers of legal and advice services and local authorities in each region, and other people interested in the work of the committees.
(3) The said committees shall ensure and facilitate the development of legal and advice services.
(4) The said committees shall advise the Board upon regional needs for legal advice, assistance and representation and the Board shall exercise its powers and duties under this Act with due regard to such advice.
(5) The Board shall provide financial and other resources to the regional committees for the performance of their obligations.").
The noble and learned Lord said: My Lords, we now return to the Legal Aid Bill. When the excitement of departure has abated, which I trust will not take long, I shall move Amendment No. 8, which imposes a requirement on the board to establish,
"regional committees for legal services, composed of appropriate groups of legal aid areas or any parts of legal aid areas".
It has been common ground in the debates on this Bill that the provision of legal services throughout the country is uneven and in some areas very inadequate. The tragedy is that it is in the areas which most often give rise to the most difficult legal proceedings in social security, housing, immigration, consumer credit and matters of that kind, that we have the least adequate provision in respect of availability of solicitors, legal aid, and advice centres.
The purpose of this important amendment is to impose a duty on the board to establish regional committees for legal services. There is an admirable precedent in what has been done by the work of the north-western legal services committee, and the work that is already being done with inadequate resources in the North-East and South Wales. The legal aid annual reports over recent years have all paid tribute to the work of the existing legal services committees, recognising their importance in the regional development of legal services by identifying unmet needs, pioneering new schemes for the delivery of legal services, and co-ordinating the provision of services in their areas. The aim of this amendment therefore is to impose a statutory duty on the board to establish these committees.
It has been said by the noble and learned Lord in our earlier discussion on this matter that this amendment is unnecessary because there is already power in the Bill for the board to establish these committees. That in my submission is not enough. The board should be under a statutory duty to establish these committees. They should consist, as the amendment states,
"of bodies representative of the consumers and providers of legal and advice services and local authorities in each region, and other people interested in the work of the committees. The … committees shall ensure and facilitate the development of legal and advice services".
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The amendment also states that the board shall be under a duty to,
"provide financial and other resources to the regional committees for the performance of their obligations".
In our view it is not sufficient to say at this stage in the proceedings on the Bill that the power is there. What we are asking for, indeed demanding, is that these duties should be placed on the board. If it be said that the board will surely do what it is empowered to do, what we seek to obtain from the noble and learned Lord the Lord Chancellor, speaking for the Government, is an undertaking that the board will be directed to set up these regional committees and will be told in advance that the relevant financial and other resources will be provided. We say this in the light of the proven record of the North-Western Legal Services Committee which for 10 years has successfully brought together all those concerned with the administration of justice and has achieved great improvements in the northwestern area. Therefore when the noble and learned Lord the Lord Chancellor comes to reply we await a positive commitment and undertaking that the board shall be required to do that which is set out in Amendment No. 8. I beg to move.
Lord Renton: My Lords, as my noble and learned friend the Lord Chancellor pointed out at the Committee stage, the board will, under the terms of the Bill as it stands, have power to establish regional committees and, presumably, area committees, too. To my mind it is unthinkable that they could discharge their duties without a great degree of decentralisation. I should have thought that that is so plain that it would be unnecessary to write it into the Bill.
5.45 p.m.
The Lord Chancellor: My Lords, we discussed this matter, as the noble and learned Lord has said, in Committee. I wish to pay tribute to the work of the North-Western area committee; indeed, I have already done so. As the noble and learned Lord has remarked, I have said before and I now say again that under the Bill the board has power, if it thinks fit, to establish and fund regional committees to help in the discharge of the board's functions. But the amendment goes a great deal further. It places a duty on the board to establish such committees and would give them the task of ensuring and facilitating the development of legal and advice services. It would also require the board to provide financial and other resources to the regional committees for the performance of their obligations.
It seems to me that the result of passing the amendment would be to establish two, or perhaps three, levels of responsibility for legal services. The Lord Chancellor has overall responsibility. Clause 2(2) gives the board the general function of securing that advice, assistance and representation are available in accordance with the Bill. The amendment would seem to establish a third level of responsibility.
Passing the amendment into statute would have at least two thoroughly undesirable consequences. The first is that it would make responsibility for legal services a muddle. Under the Bill the board will have

1231
the main responsibility for securing that the advice, assistance and representation would be given. The board will be judged on its success in securing appropriate arrangements at all levels and that is as it should be. The additional obligation on regional committees introduced by the amendment would be an unnecessary muddle and confusion in the administration. If we have learnt anything from history it is that muddle and confusion are very likely to lead to ineffective and costly administration. The lines of responsibility should be clear. The methods by which these responsibilities are discharged should be as open and as flexible as possible. The Bill provides that; the amendment would have the contrary effect.
The second undesirable consequence of the amendment is that it would make the committees responsible for securing legal aid and advice services. The Bill is concerned with legal aid in the shape of the various headings that I have already mentioned. It does not deal with general responsibility for advice services. That would be a further confusing muddle.
The board on being established may think it right to set up committees to assist it in some areas. It is possible that such committees may be needed in all areas. But it is by no means a foregone conclusion that they would always be required. The board itself, through sub-committees operating with particular knowledge, might be able to deal with that. As your Lordships will appreciate from the terms of paragraph 11(3) of Schedule 1, the sub-committees of the board can be composed of people who are not members of the board.
The powers would allow the board to apply its mind to its responsibility and to decide in the light of circumstances at the time whether or not to have regional committees. For example, the situation may vary from time to time and in different areas. The Bill gives the necessary adaptability to deal with that. The amendment would, in my submission, introduce wholly unnecessary and undesirable rigidity.
Lord Elwyn-Jones: My Lords, I regret to say that I find that a very unhappy and unsatisfactory response. The danger in much that emanates from Whitehall and Westminster is preoccupation with London, the London area and the English area. The provinces tend to be starved of resources and to be neglected: at least that is the feeling that exists in several of the places where at present, as I said earlier, the availability of legal services is so sparse and uneven.
It is flying in the face of the advice from the legal aid annual reports to doubt the value of these regional legal services. Indeed, I do not think the noble and learned Lord has ventured to do so. Their value has been proven and the outstanding example is in the North-West. It is right, at this critical stage in the development of legal aid and legal advice under the aegis of the Bill, that a new step forward should now be taken by the setting-up of regional legal services committees as proposed in the amendment.
In view of the importance we attach to this amendment, we feel it right to take the opinion of the House upon it.
5.49 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 59; Not-Contents, 107.

DIVISION NO. 2

CONTENTS

Ardwick, L.

Jenkins of Putney, L.

Attlee, E.

John-Mackie, L.

Aylestone, L.

Kilmarnock, L.

Banks, L.

Lovell-Davis, L.

Barnett, L.

McIntosh of Haringey, L.

Bottomley, L.

Mais, L.

Briginshaw, L.

Meston, L.

Caradon, L.

Mishcon, L.

Carter, L.

Morton of Shuna, L.

Cledwyn of Penrhos, L.

Mulley, L.

Cocks of Hartcliffe, L.

Murray of Epping Forest, L.

Dean of Beswick, L.

Nicol, B. [Teller.]

Diamond, L.

Northfield, L.

Elwyn-Jones, L.

Ogmore, L.

Ennals, L.

Pitt of Hampstead, L.

Ewart-Biggs, B.

Ponsonby of Shulbrede, L. [Teller.]

Falkender, B.

Falkland, V.

Prys-Davies, L.

Gallacher, L.

Ritchie of Dundee, L.

Graham of Edmonton, L.

Serota, B.

Hanworth, V.

Simon, V.

Harris of Greenwich, L.

Stewart of Fulham, L.

Hatch of Lusby, L.

Stoddart of Swindon, L.

Hirshfield, L.

Strabolgi, L.

Hooson, L.

Turner of Camden, B.

Houghton of Sowerby, L.

Underhill, L.

Hughes, L.

Wallace of Coslany, L.

Irvine of Lairg, L.

Wells-Pestell, L.

Jacques, L.

Williams of Elvel, L.

Jeger, B.

Winterbottom, L.

NOT-CONTENTS

Abinger, L.

Davidson, V. [Teller.]

Ackner, L.

Denham, L. [Teller.]

Ailesbury, M.

Dilhorne, V.

Alexander of Tunis, E.

Dundee, E.

Ampthill, L.

Elibank, L.

Arran, E.

Elles, B.

Barber, L.

Elliot of Harwood, B.

Bauer, L.

Elton, L.

Beaverbrook, L.

Enniskillen, E.

Beloff, L.

Faithfull, B.

Belstead, L.

Ferrier, L.

Benson, L.

Feversham, L.

Bessborough, E.

Fortescue, E.

Bethell, L.

Fraser of Kilmorack, L.

Blatch, B.

Gainford, L.

Borthwick, L.

Gardner of Parkes, B.

Boyd-Carpenter, L.

Geddes, L.

Brabazon of Tara, L.

Glenarthur, L.

Braye, B.

Greenway, L.

Brougham and Vaux, L.

Hailsham of Saint Marylebone, L.

Butterworth, L.

Caithness, E.

Halsbury, E.

Campbell of Alloway, L.

Harrowby, E.

Campbell of Croy, L.

Henley, L.

Carnegy of Lour, B.

Hesketh, L.

Carnock, L.

Hives, L.

Coleraine, L.

Hooper, B.

Colwyn, L.

Hylton-Foster, B.

Constantine of Stanmore, L.

Jenkin of Roding, L.

Cork and Orrery, E.

Johnston of Rockport, L.

Cottesloe, L.

Joseph, L.

Cox, B.

Killearn, L.

Craigavon, V.

Lane-Fox, B.

Craigmyle, L.

Lauderdale, E.

Crickhowell, L.

Lawrence, L.

Croft, L.

Lindsay, E.

Cullen of Ashbourne, L.

Lindsey and Abingdon, E.

1233

Long, V.

Reay, L.

Lyell, L.

Renton, L.

Mackay of Clashfern, L.

Rodney, L.

Macleod of Borve, B.

Saltoun of Abernethy, Ly

Margadale, L.

Shrewsbury, E.

Marley, L.

Simon of Glaisdale, L.

Massereene and Ferrard, V.

Skelmersdale, L.

Merrivale, L.

Strathspey, L.

Mersey, V.

Sudeley, L.

Mottistone, L.

Swansea, L.

Mowbray and Stourton, L.

Terrington, L.

Munster, E.

Thomas of Gwydir, L.

Nelson, E.

Trumpington, B.

Onslow, E.

Ullswater, V.

Orkney, E.

Vaux of Harrowden, L.

Oxfuird, V.

Ward of Witley, V.

Pender, L.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.58 p.m.
Clause 7 [Scope of this Part]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 9:
Page 6, line 36, after ("section") insert ("this Part applies to any advice or assistance and").
The noble and learned Lord said: My Lords, in Committee your Lordships passed an amendment, against my advice, in relation to the opening part of Clause 7 of the Bill. I asked my advisers, in particular the draftsmen, whether, in so far as it was consistent with producing a technically proper result, they could use all the words of the amendment which was passed. However, I was advised that in order to make the Bill technically adequate while preserving the amendment, the amendment which I now propose, together with Amendments Nos. 22, 41 and 44, are desirable.
The substitution which your Lordships made removed from the clause a reference to the matters to which this part of the Bill applies. The clause goes on to refer to matters to which this part of the Bill applies, and therefore it is necessary to include a provision which makes an application of that reference. That is the purpose of Amendment No. 9.
Amendment No. 10 is intended to make clear that the operation of Clause 7 is subject to, and in accordance with, all the provisions of the later relevant clauses of the Bill which your Lordships left standing. It must be in accordance with the view taken by your Lordships as to what ought to happen. Therefore, these are the amendments that are technically necessary to incorporate into the Bill with reasonable technical correctness what your Lordships decided on the last occasion.
Amendments Nos. 22, 41 and 44 are designed to secure that where a similar provision operates in another part of the Bill, there should be a certain symmetry between the provisions. Otherwise, as many of your Lordships know, the court construing Clause 7 in contradistinction to a later clause wonders why on earth the wording is different and it may not be possible to disclose to them the reason for that under our existing rules. Accordingly, it is wise to make the structure of similar clauses in the Bill as symmetrical as possible. That is the explanation of Amendments Nos. 9, 10, 22, 41 and 44. In the meantime, I beg to move Amendment No. 9.
Lord Mishcon: My Lords, in language which I know the noble and learned Lord, as well as others of your Lordships, will well understand, I reserve my position in regard to the interpretation to be put on the vote which your Lordships registered in Committee by way of an alteration of the clause to which the noble and learned Lord has referred. Subject to your Lordships agreeing to the next amendment which I shall move in a moment, Amendment No. 11, I have no objection to these amendments, because if your Lordships pass Amendment No. 11 I hope that you will then feel that the decision on the last occasion will be carried into effect in a way which ought to be pleasing to the Government. I hope that those last words will be echoed by the noble and learned Lord the Lord Chancellor when Amendment No. 11 is moved.
Lord Renton: My Lords, I feel that there is a simple lesson to be learnt from this; namely, that when against the advice of the Lord Chancellor a simple amendment is carried which looks all right in itself, it may give rise to a very complicated set of purely technical amendments in order to correct the matter. I must confess that I was not present on that occasion, when the Government were defeated by only two votes. However, I somehow feel that had it been realised that there were to be these consequential technical amendments, the amendment that was passed might very well not have been passed.
I know that is a matter of speculation' to which there is no answer. Nevertheless, when moving amendments which are apparently simple, we ought to try to think the matter through, especially if we are voting against the advice of the Minister in charge of the Bill.
The Lord Chancellor: My Lords, it is always open to your Lordships to vote against the advice of the Minister. I share my noble friend's view that on many occasions it may not be wise to do so. However, on this occasion I accept as fully as I can the words of the amendment and I am making the consequential amendments which I am advised are necessary in order that the Bill be technically correct. I appreciate that there will be an argument about Amendment No. 11, and I reserve what I have to say about that until we hear it being commended by the noble Lord, Lord Mishcon.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor Moved Amendment No. 10:
Page 6, line 37, at end insert ("subject to and in accordance with the provisions of this section and sections 8, 9 and 10").
The noble and learned Lord said; My Lords, I have already explained this amendment. I beg to move.
On Question, amendment agreed to.
Lord Mishcon Lord Mishcon moved Amendment No. 11:
Page 7, line 12, at end insert—
("(6) The power to exclude or restrict advice or assistance by regulations under subsections (3) and (4) shall not be exercisable unless the Lord Chancellor is satisfied that the Board will provide or secure the provision of advice or assistance equivalent to that excluded under subsections (3) or (4) in accordance with its powers under Part II.

1235
(6A) Any regulations made for the purposes of subsection (6) above shall not come into force unless or until approved by resolution of each House of Parliament.").
The noble Lord said: My Lords, no one will be astonished at the statement that a Minister feels that when his advice has not been accepted, the House has not acted with the amount of intelligence that it ought to have shown. One appreciates that point of view and I pay tribute to the way in which the noble and learned Lord the Lord Chancellor graciously accepted the verdict of the Committee.
I said that I reserved my position in interpreting what the vote was on the last occasion and what it meant. We all missed the presence of the noble Lord, Lord Renton, on that occasion, but we know he will listen with the care that he always does to those who were present, provided they give an accurate and fair account of what transpired.
The Committee was patently disturbed by Clause 7(3) and (4). I will remind the House what those subsections say. Subsection (3) states:
"Advice or assistance of all descriptions or advice or assistance of any prescribed description is excluded from this Part, or is so excluded as regards any area, if regulations so provide; and if regulations provide for all descriptions to be excluded as regards all areas then, so long as the regulations so provide, this Part (other than this subsection) shall not have effect.".
Subsection (4) says;
"Advice or assistance of any prescribed description is restricted to its provision to prescribed descriptions of persons if regulations so provide.".
That wording may sound complex but it can be put into very simple language in which the word "expertise" will not be included. The simple language is that regulations can be made hereafter to exclude from the green form scheme the giving of advice in certain areas on various matters to persons who may be prescribed by these regulations. In theory, the whole of the green form scheme could be wrecked by regulations hereafter. When I brought this matter to the attention of the Committee it was on a different amendment. My amendment then meant that the Committee was asked to agree that to do this by regulations was absolutely wrong, that primary legislation ought obviously to say what is going to be excluded from the green form scheme and if there was no such clear explanation in primary legislation the power should not be given at all to exclude any person from the benefit of the green form scheme.
I drew to the attention of the Committee and the noble and learned Lord the Lord Chancellor—not that he needed it from me—that there was a White Paper issued by the Government as long ago as March 1987 recommending that there could be certain areas which would be excluded from legal advice, aid and assistance. The areas—I am not going to detail them again to the House now; I did so in Committee—included all aspects of conveyancing and all aspects of wills.
All sides of the Committee were worried by the fact that no indication was given in this primary legislation of what exclusions could be made hereafter. Replying to the debate, the noble and learned Lord, with his usual courtesy and clarity, said—if I may paraphrase his remarks, I believe fairly—that one wanted a fluid position, that one did
1236
not want to say now what areas might be excluded, that this would be dealt with by a process of continuing thought and that there was no indication to be given to the Committee at that stage of the areas that might be excluded by the regulations.
One area that the noble and learned Lord would certainly agree in principle should not be excluded from the green form scheme relates to the drawing up of a will for perhaps very needy people, appointing the guardian of an infant child and making provision for that infant child. Other matters, including those, would have to be thought about.
I pleaded with the Committee, on a completely non-party basis, that we were walking into the most dangerous chapters of legislative history (in which this House has always played such a proud part) if, on matters as vital as this, there was no clear statement from the Minister as to what might happen in the future and we were legislating by regulations the nature of which we knew not and which could indeed be wrecking regulations to the whole of the green form scheme. It was on that basis and with that plea which I made to the Committee that the vote took place. The noble Lord, Lord Renton, may be satisfied that it was not on a technical basis, as so often happens in Committee, but on a matter of principle. The Committee was saying, "We do not like excluding our responsibility for such a vital clause as Clause 7 with its powers under subsections (3) and (4) without some clear assurance from the noble and learned Lord the Lord Chancellor as to what he himself had in mind by way of recommendation to the Legal Aid Board or otherwise by way of exclusion of certain areas from the green form scheme.
It is absolutely correct that the amendment that was passed provided that legal aid would be available to any person but then made that subject to what appeared in the rest of the clause. Subsections (3) and (4) were still applicable. We realised that, but we wanted to come forward again on Report having considered everything that the noble and learned Lord had said. The Committee having expressed its view, one hoped that the consistency which your Lordships' House so often shows would determine your Lordships on how to vote on this amendment. May I say, with the deepest respect, we hoped also that it would have a desirable effect on the very learned mind of the noble and learned Lord the Lord Chancellor.
We did the thinking, and the thinking was this. The main objection of the noble and learned Lord the Lord Chancellor and the advice which he tendered to the Committee was the lack of flexibility if one puts this sort of measure in the Bill. That was the first point.
The second point was that in depriving oneself of flexibility and further consultations, one was doing something rather foolish. We have got over that in this amendment which says just this—if I may again use simple language. We do not ask that the primary legislation shall say specifically that nothing is to be excluded from the green form scheme. We do not say that what is to be excluded has now to be announced, though I again plead with the noble and learned Lord the Lord Chancellor when he replies to the amendment to show his mind in regard to these

1237
matters rather more than he has done to the House up until now.
What we say is that nothing will be excluded from the green form scheme under this part of the Bill unless its equivalent is provided for by the Legal Aid Board and that it is satisfied that provision can properly be made for an equivalent service being afforded under Part II of the scheme. In other words, we allow for the fact that those services can be contracted out but that they will be provided and that there will be no such exclusion completely from the green form scheme. In Committee—and I would not dream of wearying your Lordships now—I dealt with the points made in the White Paper. I spoke about the injustice, unfairness and wrongness which would exist if a broad provision was made about the exclusion of wills, conveyancing and matters of that kind which were specifically canvassed in the White Paper of March 1987. I do not intend to do that again because the noble and learned Lord courteously dealt with those matters; not in detail, but he recognised that there was at least merit in the argument that the provisions for legal aid and advice in the green form scheme were certainly of a valuable nature.
That is all we ask for in this amendment. Flexibility remains. Counselling, thinking and consideration all remain. All that we are saying, without allowing regulations to take over a legislative power which we think is completely inappropriate especially in this case, is that if one excludes from Part III in the green form scheme any area at present covered by it, then it must be provided for in the contracting-out provisions of Part II.
The vote in Committee was a very clear vote for Parliament not deciding to wreck the green form scheme as it might be wrecked, or to exclude, without totally wrecking, various areas of legal aid work and assistance which is now given. The consistency which I hope we show in this amendment is to recognise that the noble and learned Lord the Lord Chancellor put some points to the Committee which ought to be treated with respect. This amendment, if I may be allowed to say so, similarly ought to be treated with respect by the noble and learned Lord the Lord Chancellor. I beg to move.
6.15 p.m.
Lord Meston: My Lords, I should like to support the amendment. It is not clear what exclusions are envisaged in subsections (3) and (4) of Clause 7. It must remain a concern that those matters are not spelt out. The fact is that flexibility can be misused and if we cannot have the principles clearly stated on the face of the Bill then there should be some mechanism for governing the powers as proposed in the amendment.
I should like to take the opportunity to express one other matter of concern as regards the terminology which may only be as a result of my concern and stupidity. The noble Lord, Lord Mishcon, has referred to "areas of advice" and the White Paper refers to "areas of work". I assumed that that was the sense in which the word "area" was used in Clause 7(3). Then it occurred to me that it might be taken as meaning a geographical area which is the way in
1238
which the word "area" is used, for example, in Clause 3 which refers to,
"different areas in England and Wales and in different ways in different fields of law".
I hope that is a matter to which some consideration might be given in order to clear up exactly what is meant, particularly because the White Paper uses the expression "area" in another sense altogether.
Lord Renton: My Lords, I appreciate the noble Lord's motive in moving the amendment. I have been trying to follow through its effect in relation to the Bill as it stands and in relation to what the noble and learned Lord the Lord Chancellor said when replying to the debate in Committee on a previous occasion.
It may be that it is my own intellectual limitation but I find a very strange situation arising from the amendment. In Clause 7(3) we find that there may be exclusions by regulation. The amendment says that there may not be exclusions by regulation
"unless the Lord Chancellor is satisfied that the Board will provide or secure the provision of advice or assistance equivalent to that excluded".
We shall have a plain contradiction if we add that amendment to the Bill.
Lord Mishcon: My Lords, with the permission of the House perhaps I may intervene before the noble Lord sits down. He will find the definition under Part II. What has to be done is that before one excludes anything by regulation, the Lord Chancellor and the board have to be satisfied that it can provide what is excluded under Clause 3 of Part II.
Lord Renton: My Lords, the noble Lord has, no doubt unintentionally, brought me to the very next point that I was going to make. We have to be very careful, as my noble and learned friend on the Woolsack said on a previous occasion, not to have a duplication between Part II and Part III. Also I should like boldly to go a little further and say that we have to be careful not to have a contradiction between Part II and Part III.
The Lord Chancellor: My Lords, Part III of the Bill deals with advice and assistance. Part II enables the board to contract out, for example, to solicitors, legal advice agencies and law centres, the obtaining and giving to clients—that is persons who wish to avail themselves of advice and assistance—of that particular kind of advice or assistance. Under Part II, if the board contracts out a particular service it would seem right that it should not also be provided under Part III by way of duplication. Subsections (3) and (4) therefore embrace necessary provisions to exclude from Part III what is provided under Part II. Otherwise, there is a waste of time. If one sets up a contract with a law centre for legal advice on, let us say, social security benefits and these provisions are made, then anyone can go along to a law centre and obtain advice on social security benefits. That is the arrangement. If at the same time anyone with the appropriate qualifications and means goes along to a solicitor under the green form scheme for the same kind of advice there is a quite unnecessary duplication in the service.
The amendment of the noble Lord, Lord Mishcon, recognises that and in effect it says that exclusion

1239
cannot be made under Part III unless there is provided the equivalent service under Part II. So far so good. But Part III contains exclusions which are not related to alternative provisions at all. In relation to legal aid, power to this effect has been included in the legislation for quite a long time. I instance Section 7(2) of the 1974 Act.
Perhaps I may give an illustration. In the White Paper the Government said that it would not be right to continue giving the green form scheme cover to advice required for wills and conveyancing. In any publicly-funded service of this kind it is surely necessary to try to direct the available money—which in no regime is infinite—to the places where it is most needed. If your Lordships were asked to think of two branches of the law in which this form of advice might not be required to be given by a publicly-funded system, I venture to think that conveyancing would come first perhaps, and wills second. Those instances might well occur to your Lordships. That is the idea that is floated as a proposal in the White Paper. If that is to be given effect the Government need power to do that. The amendment put forward by the noble Lord, Lord Mishcon, would cut that out; it would allow it to be done only if the law centre was to provide advice on conveyancing and wills.
I plainly recognise that the general subject of wills and conveyancing is a rather general description and that there may be instances within these classifications where your Lordships would feel it right that green form advice should be available. On the last occasion I instanced the situation of a one-parent family living in rather needy circumstances. The single parent might think it right to nominate a guardian for the children who would look after them in the event of anything happening to the parent. That is a very proper provision and something which might not occur to your Lordships as a very typical example of the kind of will that one sees mentioned in the newspapers from time to time. Nevertheless it is an important will and in the interests of the children.
I clearly see that it might be very wise to exclude that kind of special situation from the generality of the exclusion. These are matters to be considered carefully. I believe your Lordships will agree that these are matters upon which experience may show from time to time that what has been done to date is not perfect and that some improvement might need to be made in the descriptions of either the excluded class or of the exclusions from it.
The powers that are contained in subsections (3) and (4) are designed to cover both those possibilities which have existed since 1974 in relation to legal aid. The objective is to cut out some kinds of aid from the scheme altogether. The defamation action is an example. From the beginning of legal aid, successive governments have thought it right that it should not be available for actions of defamation. That is not universally agreed and your Lordships have argued about it during the course of discussions on the Bill. However, the decision has been taken and it seems to me a reasonable decision. It is an illustration of the fact that legal aid is not universal, and that in using the money the taxpayer has given it is wise for the
1240
Government to try to direct it to the types of work for which it is really necessary and will be effective in helping the people who really need it.
That power is required and subsections (3) and (4) of Clause 7 confer it. However, the power is expressed in such a way as to enable us also to exclude from the green form scheme the situation where it has not been cut out altogether but has been provided in another way through contracting out under the Part II provisions. The noble Lord, Lord Meston, referred to the word "area" and also to the other part of the clause. The word "area" is used here—and I believe consistently in the Bill because it is the dictionary of the Bill that is important—in a geographical sense. If a law centre serves an area in which one can get advice of a particular kind, it would be right to exclude that type of advice from the green form scheme in that area. If there is no such law centre or advice agency in a different area of the country it would not be right to do so. It is right to have variation with geographical area in mind.
It is also right to have particular types of advice or assistance. The phrase used for that, in contradistinction to "area", is "any prescribed description". If I were operating the power to exclude, for example, wills and conveyancing in the whole of the country, the prescribed description would be wills and conveyancing. I have no doubt that the draftsman will advise me that it would require to be more carefully drafted but for the purposes of argument that may be sufficiently precise.
We need both of these powers and they are covered in subsections (3) and (4). The effect of the noble Lord's amendment would be utterly to cut out the power to restrict the application of legal aid by reference to subject matter unless it was already provided under Part II. That would not enable us to target legal advice and assistance on the areas which might be important. Your Lordships have been told that this is an important matter and with that I agree. In consequence, I have agreed that these powers to exclude from the scope of legal advice and assistance will be subject to the affirmative resolution procedure. Therefore your Lordships would have to have an explanation of why, if I were to bring this forward, it was thought right to cut out wills and conveyancing from the green form scheme, possibly subject to exclusions, such as I have mentioned, in favour of one-parent families and other cases of that kind. The noble Lord's amendment would effectively demolish that option and might force us to continue to apply money to areas where it was not being particularly well used when there was crying need for it to be used to better effect in another part of the work.
6.30 p.m.
Lord Mishcon: My Lords, in his reply to this amendment the noble and learned Lord said two main things. However, he did not say one very important thing. He said that this amendment would exclude work the nature of which is not thought to be of a high priority in the green form scheme and which therefore, looking at the scheme as a whole, ought to be excluded. He said, secondly, that the House can

1241
always voice its opinion in regard to any excluded matter proposed because the regulation will be subject to the affirmative resolution procedure.
The noble and learned Lord has not said that the 1974 Act had a similar provision. But nobody has thought since 1974 of excluding anything that was then available under that Act. But there was a White Paper of March 1987 and that proposed some types of exclusion. So there is a different situation when we repeat that provision here.
Secondly, the noble and learned Lord has still not said what he and the Government have in mind by way of exclusions. Not one single example has been given. There was a general phrase about the area of conveyancing and wills—I am sorry if I use the word in the sense that might be muddling but I do not think it is muddling when I use it in this context. There was no reference to whether conveyancing and wills might be hit, or other matters besides those, or within the areas of conveyancing and wills what might or might not be thought of as being of high priority for needy people. On the last occasion I gave examples of the conveyancing need—because conveyancing sounds such a grand phrase—for poor people in necessary circumstances.
I wonder whether your Lordships will take for granted for one moment that the regulation was of the nature that the noble and learned Lord was good enough to indicate by way of example. A regulation comes before the House that says that under subsections (3) and (4) it is proposed to exclude—I shall continue with the example—matters of conveyancing and wills. I wonder whether the House will be good enough to ponder for a moment what the parliamentary power would then be. Some of your Lordships might think that a very good case has been made out for conveyancing but not for wills, or for wills but not for conveyancing. Your Lordships will not be able to move an amendment to exclude or include either of those items. Your Lordships will either have to accept the whole lot in one swallow or not.
In regard to the speeches that will be made on that occasion, one knows that any Lord Chancellor will listen to them with courtesy and patience. He will have the very distinct option, having taken note of them, to decide that he will still go ahead with the regulation. Your Lordships will know that no power whatsoever is vested in the House to deal with a series of exclusions that maybe put forward in a regulation. Indeed, it is not even a normal procedure for the House to vote against a regulation even though it would have to vote for or against it in its entirety.
In the face of not one single indication from the Government, even at this stage, as to its reaction to the White Paper of March 1987, what does the amendment do? Before I have to take a decision with my noble friends as to how I deal with the amendment on Report, will the noble and learned Lord at least—I shall sit down to give him the opportunity to reply if he would kindly take advantage of it—give an assurance that before the completion of the Bill's passage through Parliament he, or the Government in another place, will give a
1242
clear indication of their thinking on what should be excluded under subsections (3) and (4)?
The Lord Chancellor: My Lords, with the leave of your Lordships, I should like to say that the White Paper makes the Government's thinking plain in general terms. I see no reason, on this aspect, to depart from that thinking subject to the need to qualify those exclusions by reference to cases such as I have already mentioned. There may be other similar cases which have not yet been brought to our attention on consultation. I want to make it plain that those powers exist to be considered not only immediately after the Bill has been passed, but from time to time to ensure that the money which the taxpayer contributes towards legal aid is used to its best advantage.
Lord Mishcon: My Lords, I am grateful for the polite reply that the noble and learned Lord gave to my question. I am sure he will not think me in the slightest degree rude if I limit the adjective to the word "polite".
The Government's policy is vague in regard to a valuable scheme—one of the pillars upon which legal aid depends. The green form scheme saves a great deal from the country's coffers by way of preliminary advice so that litigation is avoided. For example, advice on wills is given so that there is no mess in regard to children and so on when people leave this earth. The Government's answer on this matter is so vague that I am afraid I must press the amendment in the same spirit as on the last occasion. I hope that your Lordships will be consistent when we go through the Division Lobbies.
6.43 p.m.
On Question, Whether the said amendment (No. 11) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 85.

DIVISION NO. 3

CONTENTS

Ackner, L.

John-Mackie, L.

Airedale, L.

Kilmarnock, L.

Ardwick, L.

Listowel, E.

Aylestone, L.

Meston, L.

Benson, L.

Mishcon, L.

Bottomley, L.

Morton of Shuna, L.

Briginshaw, L.

Mountevans, L.

Carter, L.

Murray of Epping Forest, L.

Cledwyn of Penrhos, L.

Nicol, B. [Teller.]

Craigavon, V.

Northfield, L.

David, B.

Ogmore, L.

Diamond, L.

Phillips, B.

Elwyn-Jones, L.

Pitt of Hampstead, L.

Ennals, L.

Ponsonby of Shulbrede, L. [Teller.]

Falkender, B.

Gallacher, L.

Simon of Glaisdale, L.

Graham of Edmonton, L.

Stewart of Fulham, L.

Harris of Greenwich, L.

Stoddart of Swindon, L.

Hatch of Lusby, L.

Strabolgi, L.

Hooson, L.

Thurlow, L.

Houghton of Sowerby, L.

Turner of Camden, B.

Irvine of Lairg, L.

Underhill, L.

Jeger, B.

Williams of Elvel, L.

1243

NOT-CONTENTS

Abinger, L.

Harrowby, E.

Alexander of Tunis, E.

Henderson of Brompton, L.

Allen of Abbeydale, L.

Hesketh, L.

Ampthill, L.

Hives, L.

Arran, E.

Hooper, B.

Bauer, L.

Hylton-Foster, B.

Beaverbrook, L.

Jenkin of Roding, L.

Beloff, L.

Joseph, L.

Belstead, L.

Lane-Fox, B.

Bethell, L.

Lauderdale, E.

Blatch, B.

Lindsey and Abingdon, E.

Boyd-Carpenter, L.

Long, V.

Brabazon of Tara, L.

Lyell, L.

Brougham and Vaux, L.

Mackay of Clashfern, L.

Caithness, E.

Macleod of Borve, B.

Campbell of Croy, L.

Marley, L.

Carlisle of Bucklow, L.

Merrivale, L.

Carnock, L.

Mersey, V.

Coleraine, L.

Mottistone, L.

Constantine of Stanmore, L.

Mowbray and Stourton, L.

Cork and Orrery, E.

Munster, E.

Cottesloe, L.

Napier of Ettrick, L.

Cox, B.

Nelson, E.

Craigmyle, L.

Nelson of Stafford, L.

Crickhowell, L.

Orkney, E.

Croft, L.

Oxfuird, V.

Cullen of Ashbourne, L.

Pender, L.

Davidson, V. [Teller.]

Prior, L.

Denham, L. [Teller.]

Reay, L.

Dilhorne, V.

Renton, L.

Dundee, E.

Renwick, L.

Elibank, L.

Rodney, L.

Elton, L.

Saltoun of Abernethy, Ly.

Faithfull, B.

Skelmersdale, L.

Ferrier, L.

Sudeley, L.

Fortescue, E.

Swansea, L.

Fraser of Kilmorack, L.

Swinfen, L.

Gardner of Parkes, B.

Thomas of Gwydir, L.

Geddes, L.

Trumpington, B.

Greenway, L.

Ullswater, V.

Hailsham of Saint Marylebone, L.

Vaux of Harrowden, L.

Ward of Witley, V.

Halsbury, E.

Windlesham, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.50 p.m.
Clause 8 [Availability of, and payment for, advice and assistance]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 12:
Page 7, line 20, leave out subsection (3) and insert—
("(3) Assistance by way of representation under this Part shall not be given without the approval of the Board except—

(a) in proceedings before the Mental Health Tribunal; and

(b) in proceedings before the Social Security Commissioners, and subject to any other prescribed exceptions.").

The noble and learned Lord said: My Lords, the amendment arises from the provisions in the Bill for advice and assistance in Part III. Clause 8(3) provides:
"Subject to any prescribed exceptions, assistance by way of representation under this Part shall not be given without the approval of the Board".
The amendment proposes that two exceptions be specified at this stage in order that they may be put into the Bill and become part of the law on enactment. There are two circumstances where representation should be given. One is in proceedings before the mental health tribunal. Those proceedings are already the subject of enjoyment of advice facilities under the legal aid scheme. The mental
1244
health tribunal provided expressly for them in the discussion on the mental health Bill. That is kept in because they are already part of the arrangements.
It is proposed to add for availability for assistance under the green form scheme proceedings before the social security commissioners. In an earlier discussion on tribunal representation when a number of other tribunals were under consideration, the noble and learned Lord the Lord Chancellor seemed to be particularly well disposed towards proceedings before social security commissioners. It may well be that they are—as I submit—in a sense a class apart. Since April 1987 they have dealt with questions of law only.
The DHSS and the Secretary of State for Social Services are invariably legally represented in proceedings before the social security commissioners. This reflects the legal complexity of many of the matters that they have to consider. Claimants, however, who are usually in the appellant's role, are except in a handful of cases unable to afford private representation and have to rely on the free services of law centres, advice agencies and the free representation unit and other admirable bodies, which do their best to help the needy. Since those resources tend to be concentrated in London and in other large urban centres, as I ventured to say earlier, access to their services depends to an unacceptable extent on the geographical location of the claimant in question. The amendment, by putting a duty on the board to ensure that representation is available everywhere in social security commissioners hearings, remedies that situation. I beg to move.
The Lord Chancellor: My Lords, as I understand it, the amendment would have the effect of removing the merits test altogether in respect of proceedings before the mental health review tribunals. The merits test applies not only to the nature of the proceedings but also to the respresentation that is in question. In the case of mental health tribunals the merits test presently applied under the existing system, which would continue to be applied in the future so far as concerns the general statutory provisions and regulations, is this. The ordinary merits test is that the applicant has a reasonable case and that it is not unreasonable to grant aid in the particular circumstances of the case. Under the regulations so far as concerns mental health review tribunals this form of representation shall be approved unless it appears unreasonable that approval should be granted in the particular circumstances of the case. In other words, there is a strong onus in favour of the applicant, but it is not absolutely compelling.
So far as I have been able to discover, the normal result is that an applicant before a mental health review tribunal has this form of representation. There has been at least one exceptional case in which the applicant wished to instruct a solicitor who practised a considerable distance away from the hospital. That was going to involve considerably more expense than getting a solicitor equally able to deal with the matter much closer.
Under the amendment, which has the effect of removing the restrictive merits test altogether, whenever an application is made for representation,

1245
however unreasonable the circumstances, the Legal Aid Board's approval will not be required. I doubt whether it is wise to go that far. I entirely accept the noble and learned Lord's desire to ensure adequate representation before mental health tribunals. That is my response to that part of the amendment.
The second aspect seeks a new development altogether in respect of social security commissioners. Representation is not available before the social security commissioners at present. As I said in Committee, the theory under which all these tribunals have been set up is that they should be informal and of a kind in which the tribunal did all the work; all the applicants had to do was state their cases. Those of your Lordships who have had the privilege of attending tribunals in recent times may be apt to question the extent to which that objective has been entirely fulfilled. The noble Lord, Lord Irvine of Lairg, spoke on Second Reading about the weight of representations that sometimes appear at various tribunals, no doubt on occasion at least to good effect.
The social security commissioners tribunal deals with difficult and important questions. I said in Committee—and I repeat—that in my view there is a high priority for extending legal aid to do this when opportunity offers. One has to take account of all the circumstances. We are concerned at present with the basic framework under which we are operating. I think that it would not be right as part of the primary legislation at this stage to include the social security commissioners.
There are other tribunals for which a strong case can also be made. I have not personally had an opportunity of hearing the arguments in favour of these others, but I am sure they will have strong arguments to make. This is my own view in the light of what I have heard so far; but I do not believe it would be fair to reach a conclusion upon this point at this stage of the Bill.
In my submission to the Committee this Bill is concerned with putting the structure in place. The precise scope of the form of representation and the rest of legal aid so far as it is not laid down in the statute would appropriately be the subject of regulation. I would therefore invite noble Lords not to approve this amendment, although I shall certainly have very much in mind the second part of it as we go forward into the future of legal aid.
Lord Renton: My Lords, I just wish to say a word about the mental health tribunals because I have been involved in this subject for many years. I helped to pilot the Home Office clauses of the Mental Health Act 1959 which are really the foundation still of the present law. When we had the more recent mental health Act in your Lordships' House, I think in the last Parliament, I took a close interest in the details of the legislation. I also happen to be the president of MENCAP and I was chairman for a number of years before that.
It has not been brought to my notice that any hardship has been caused under the present arrangements which my noble and learned friend has mentioned. If I have understood his remarks correctly, it is the intention under the new scheme,
1246
subject to a degree of flexibility, to maintain those arrangements. Therefore, I would not have thought that there was any need for the amendment so far as it affects mental health tribunals. However, I do not have a close knowledge of the work of the social security commissioners so I shall not comment on that.
Lord Elwyn-Jones: My Lords, with regard to the mental health tribunals, I am also involved as president of the Mental Health Foundation and I am very concerned in this field. I do not know whether an amendment to include the restricted merits test might remedy the difficulties which the noble and learned Lord contemplated about accepting paragraph (a) in the amendment. I do not know whether it would be possible to give thought to that before the next stage.
On the other matter of the social security commissioners, the most I can apparently hope for is a vista of when there will be an extension of the availability of legal aid and legal services. Now that we are told of the enormous wealth at the disposal of the Chancellor of the Exchequer perhaps we may hear of it during the forthcoming Budget and the forthcoming legislation. But in the short term at any rate, and without provoking a denial by virtue of my words, I wonder whether the noble and learned Lord can help a little more about the difficulties which are envisaged in proceedings before the mental health tribunals.
The Lord Chancellor: My Lords, with the leave of the House, as far as I can see, as the noble Lord, Lord Renton, said, the present arrangements are satisfactory. If I understood correctly the effect of the amendment proposed by the noble and learned Lord, Lord Elwyn-Jones, it would simply remove the present merits test. It is a very restricted merits test indeed, in the sense that it is very easy for the applicant to pass the test. In the vast majority of cases, apart from the exceptional one which I mentioned, the applicants seemed to have passed the test. There may be some point which the noble and learned Lord's amendment focuses upon which I have not completely understood. In that case, no doubt we can confer later. But at present my understanding is that the arrangements are as I have described. They seem highly reasonable and only give scope to cut out utterly unreasonable applications, they work well and could be left as they are.
Lord Elwyn-Jones: My Lords, perhaps before the next stage I in turn can take further instructions and guidance from those who were concerned about this. In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Arran: My Lords, your Lordships may feel that we have reached a suitable moment to break. If so, I beg to move that further consideration on Report be now adjourned; and that we do not return before 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Employment Protection (Variation of Limits) Order 1987
7.6 p.m.
The Earl of Dundee The Earl of Dundee rose to move, That the draft order laid before the House on 9th December 1987 be approved [10th Report from the Joint Committee].
The noble Earl said: My Lords, I beg to move that the draft Employment Protection (Variation of Limits) Order 1987 be approved. Perhaps I may also speak to the other order on the Order Paper, the Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1987. Both these orders were laid before your Lordships' House on 9th December 1987.
The Draft Employment Protection (Variation of Limits) Order 1987 has been laid before your Lordships in accordance with Section 148 of the Employment Protection (Consolidation) Act 1978. This legislation requires the Secretary of State for Employment to review in each calendar year the upper limit that is imposed on the amount of a week's pay for calculating certain payments and awards under the employment protection legislation. The awards in question are redundancy payments, the basic and additional awards for unfair dismissal, and debts that can be paid under the insolvency provisions of the 1978 Act. The Secretary of State is also required to review the limit on the amount of guarantee pay due to an employee in respect of any day on short time or temporary lay-off, and the duration of such payment.
In making the review my right honourable friend the Secretary of State has to consider the general level of earnings obtaining in Great Britain at the time of the review, the national economic situation as a whole, and such other matters as he considers relevant.
The Government have consulted a wide range of organisations in the course of the review for their views of what changes, if any, should be made to the limits. Employer organisations were in general against any increase on the grounds of the additional costs to industry, or suggested, alternatively, that any increase should be modest. Trade unions, on the other hand, argued for increases at least in line with the increases in average earnings.
Having carried out the review the Government propose to increase the limit on the amount of a week's pay from £158 to £164 and to raise the limit on the daily amount of guarantee pay from £10.90 to £11.30. These increases are in line with the rate of inflation.
In reaching their decision the Government have had very much in mind their belief that excessive burdens on business will only tend to discourage enterprise and have an adverse effect on employment opportunities. There is evidence to support the view that the employment protection legislation has inhibited some employers from recruiting. While making every effort to encourage employment by reducing the burdens on businesses the Government are of course committed to safeguarding the essential rights of employees. It is important to establish an equitable balance between the interests of employers
1248
and employees and I believe that the proposed increases do just that.
The other limits relating to the duration of guarantee pay will not be varied. The specified number of days in the relevant period for which such payments can be made will remain at five, and the relevant period will continue to be three months. If my right honourable friend, the Secretary of State decides, as he has done, that these limits should not be varied, he is required to lay before Parliament a report giving his reasons. Such a report was laid at the same time as the laying of the draft orders we are now debating. It explains that both the limits on the duration of guarantee pay still seem to strike a fair balance between the employers' obligations and the employees' rights.
I come now to the draft Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1987, which has been laid before the House in accordance with Section 73(4B) and 75A(7) of the 1978 Act. These awards were introduced by the Employment Act 1982 and they apply to dismissal for trade union membership, trade union activities or non-membership of a trade union. The limits are not subject to annual review but they may be reviewed from time to time.
These special provisions were introduced in order to protect the individual's rights to choose whether or not to join a union. The Government have therefore decided, as with the other awards, to increase the basic and special awards generally in line with inflation. The minimum basic award will therefore go up from £2,300 to £2,400, and the limits which apply to the calculation of the special award will be increased from £11,500, £23,000 and £17,250 to £11,950, £23,850 and £17,900 respectively. I beg to move.
Moved, That the draft order laid before the House on 9th December 1987 be approved [10th Report from the Joint Committee].—(The Earl of Dundee.)
Baroness Turner of Camden: My Lords, I rise to thank the Minister for his explanation of these orders and to say from these Benches that we welcome any increase. On the other hand, we regret that the Government have not found it possible to up-rate the employment payments by more than the rate of inflation this year. Indeed, the increases again fail to match the increase in average earnings which I understand was 7·7 per cent. last year. In the past there has also been a failure even to meet the rate of inflation, because I understand that past increases have been of the order of 1 per cent, and 2 per cent.
The result of all that is that the statutory redundancy and unfair dismissal payments which are allied to what people have been earning while in employment are now only two-thirds of the value they would have been had there been proper up-rating in line with the average earnings since 1976. Another way of putting it is that between 1976 and 1987 average earnings increased more than three-fold, by 317 per cent., whereas the limit on redundancy pay has only been increased two-fold. This is particularly unfortunate since there is a provision under Section 148 of the Employment Protection (Consolidation) Act 1979, to which the

1249
Minister has already referred, which stipulates quite clearly that the Employment Secretary should take into account the general level of earnings.
I note that the Minister says that there has been consultation with both sides of industry on the issue of up-rating of employment benefits. However, it is my understanding that the Trades Union Congress has written to the Minister again to complain, as it has complained in the past, at the failure to up-rate in line with the wages index. I should like to ask the Minister whether, if further representations are made, these will be considered, and whether there will be an agreement to see the TUC on this question of up-rating of benefits if the matter is pressed. It is my understanding that this is not the first occasion on which this matter has been raised. There is serious concern that the employment benefits are not being up-rated in line with the wages index and with what was taken to be a provision and a promise contained in the 1979 Employment Protection (Consolidation) Act.
The Earl of Dundee: My Lords, I am grateful to the noble Baroness for her comments. On the point of whether or not the rises should be linked to average earnings or to some other criterion, in reviewing the limits on awards my right honourable friend has to assess a number of factors. To have increased the limits in line with average earnings would have put an unacceptable burden on employers and have had an adverse effect on employment opportunities and recruitment.
The noble Baroness referred to the Trades Union Congress and to further representations which my right honourable friend might possibly take into account. I assure her that he will always consider any representations and give them fair hearing. Having said that, I should say to the noble Baroness that my right honourable friend has already considered this matter very carefully before coming to his decision and in the circumstances he has judged the balance as best he can between the interests of all parties involved.
On Question, Motion agreed to.

Unfair Dismissal (Increase of Limits of Basic and Special Awards) Order 1987
7.14 p.m.
The Earl of Dundee: My Lords, I beg to move.
Moved, That the draft order laid before the House on 9th December 1987 be approved. [10th Report from the Joint Committee].—(The Earl of Dundee.)
On Question, Motion agreed to.
Viscount Long: My Lords, I beg to move that the House do now adjourn during pleasure until 8.5 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.15 to 8.5 p.m.]

Legal Aid Bill [H.L.]
Consideration of amendments on Report resumed on Clause 8.
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 13:
Page 7, line 40. leave out subsection (8) and insert—
("(8) Subsections (6) and (7) above shall not apply to a person whose financial resources are such as to make him eligible for prescribed social security benefits, who shall be entitled, without payment of a contribution, fee or charge to advice and assistance under this Part".).
The noble and learned Lord said: My Lords, the amendment is intended to remedy a curious anomaly which arises from the following circumstances. Financial eligibility for legal aid is assessed according to the applicant's means on the basis of disposable income and capital. The civil legal aid scheme has upper and lower capital limits which are currently £3,000 and £4,850. Therefore, an applicant with capital between those amounts would be entitled to legal aid on payment of a contribution and subject to assessment of income. However, the green form scheme to which Part III and Clause 8 with which we are now dealing apply has only one capital limit which is currently £825.
A person with capital of less than £825 is entitled to assistance, subject to paying whatever contribution is required out of income. No contribution is payable out of capital. However, a person with capital of more than £825 is not entitled to advice and assistance under the scheme. The capital cut-off for entitlement to supplementary benefit is currently £3,000. Therefore, not all supplementary benefit claimants are entitled to advice under the green form scheme. That works particularly to the detriment of elderly claimants on supplementary pension who are excluded from the legal aid scheme because of a small amount of savings which they may have accumulated.
It is interesting to note that the Legal Aid Advisory Committee recognised the anomaly as long ago as 1978 when it stated in a report:
"There is considerable evidence that people, particularly pensioners who have saved a little capital, are thereby taken outside the scope of the scheme, and we do not think this was intended. Again, we think that no smaller amount than exists for supplementary benefit should be available here".
Claimants of social security benefits are certainly deterred from seeking legal advice if they have to pay for it out of any savings they may have accumulated. Unhappily, those most affected are pensioners who have no opportunity to replace savings that they have to spend and who rely on those savings to ease their retirement years and, above all, to pay for their funerals. In the old days that matter used to worry working people and no doubt it still does.
The conclusion which I submit to the House is that the green form capital limit should be allied with capital limits for income-related benefits to ensure that all claimants are eligible for advice and assistance under the green form scheme and that elderly pensioners should not be prejudiced. I beg to move.
The Lord Chancellor: My Lords, the point raised by the amendment was raised in a somewhat similar

1251
form at Committee stage. As the noble and learned Lord, Lord Elwyn-Jones, has said, for a long time there has been an arrangement under which a person on supplementary benefit who has capital of over £825 is required to contribute to pay for legal advice. In other words, people are not entitled to advice and assistance just because they are entitled to supplementary benefit. In that situation the total amount that is required is comparatively small, given the limit of the green form; and it seems not unreasonable to ask persons with capital of over £825 to pay the modest sum that is involved in the green form advice.
The problem about capital is a general one. It is always somewhat hard on persons who have saved that they have to pay, whereas persons who have not saved and have no capital do not have to pay. However, if one is going to use need as the criterion, that is the consequence.
However, we have in mind that it may be wise in the future for a number of reasons to link the entitlement to green form advice with the social security benefits. We have provided for that in Clause 8(8). The regulations may be couched in terms that tie the two eligibilities together. So we have catered for it in the Bill to that extent; but at present I do not think it right that the Bill should be enacted in a form which binds us in whatever circumstances. There are different considerations to be applied to legal advice and assistance on the one hand and supplementary benefit on the other. The one may well be a good criterion in many circumstances for eligibility for the other, but not necessarily in all circumstances. It is on that basis that the Bill is drafted and I invite your Lordships to adhere to that principle.
Lord Elwyn-Jones: My Lords, I am not sure that I entirely follow what the noble and learned Lord has said. Are the regulations to which the noble and learned Lord referred current and effective regulations that are presently applied or are they something contemplated for the future?
The Lord Chancellor: My Lords, with the leave of the House, I am sorry that I have not made the position clear. The Bill provides the power to link eligibility for advice and assistance to entitlement to benefit under social security regulations. It enables us to couch the regulations in that form in the future but it does not necessarily tie us to giving free legal advice and assistance to those who are on supplementary benefit. It would enable us to do that but does not bind us to do so.
Lord Elwyn-Jones: My Lords, we really are dealing with a miserable situation. What about old people who have saved a little and gone just beyond the limit where they can enter this green form scheme without having to make extra payment? It sounds mean. I do not think that any government like to be thought mean; but this situation has existed for a long time unfortunately and in so far as meanness can be applied to this Government, it could equally have been applied to those which preceded it. However, we are dealing with very small sums, and although
1252
paying out a small sum may be negligible to those of ordinary resources, for those in this category with the enormous capital of £825 saved which prejudices them from entering into the green form scheme, it really will not do. Can the noble and learned Lord not get the great men of the Treasury to look at this to see whether they cannot rescue the scheme from this appalling anomaly?
The Lord Chancellor: My Lords, the noble and learned Lord tempts me again. In the Bill we have provided scope for doing so; but I think that it would be wrong to be bound to do it. After all, no one can say how liberal social security benefits may be in the future, and I think that it would be wrong to go any further than I have done.
Lord Elwyn-Jones: My Lords, looking at the presence in the House, to ask the opinion of the House would be a matter of supererogation. In the circumstances, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
Clause 9 [Financial limit on prospective cost of advice or assistance]:
Lord Irvine of Lairg Lord Irvine of Lairg moved Amendment No. 14:
Page 8, line 21, at end insert—
("( ) The Lord Chancellor shall carry out an annual review of the prescribed limit and in making regulations or determining whether to make regulations shall have regard to the hourly rate of remuneration for solicitors giving advice or assistance prescribed by regulations made pursuant to section 32.").
The noble Lord said: My Lords, the purpose of this amendment is to provide for an annual review of the financial limits for advice and assistance under the legal aid scheme. As your Lordships will know, that is currently £50 for ordinary cases. The upper limit has been increased from time to time over the years. From 1974 until 1980. it was £40. It became the present £50 in November 1983.
There has been no undertaking from the Government to review the financial limits on a regular basis. The thinking behind the amendment is that the provision of early and efficient legal advice is an essential part of the system of justice. That is because, in practice, failure to increase the initial limit for green form advice in line with remuneration levels has meant that the amount of work that may be performed without further authorisation has become minimal. The Law Society would say—and I do not understand it to be factually challenged—that it represents now only one and half hours' work.
What matters about the green form scheme is not its theoretical availability. Harking back to a previous amendment, what matters are the issues it will cover in practice and whether the financial limit can provide anything of real worth.
An adequate and realistic financial limit can save money in the long run. I hope that an argument in the name of sensible economy will appeal to the noble and learned Lord on the Woolsack. There must be many cases where, if the limit were higher, negotiations could be conducted and a settlement reached.
Your Lordships should also know that these limits apply to a broad range of cases; for example, matrimonial cases in which, as is well known, an inadequate financial limit can lead to greater cost in the long run as well as painful and unnecessary friction between the parties. Similarly, this low level of financial limit has been extended into other forms of advice. The advice given to people held at police stations under the 24-hour duty solicitor scheme is restricted to £50 in lower tier cases.
It was argued in Committee that a financial limit set at a specific higher level would avoid the need to apply for extensions to the legal aid authorities. That would lead to corresponding savings in administrative costs. It was suggested that, rather than setting the limit at some arbitrary monetary level, it would be more appropriate to link it with remuneration levels so that the initial limit would always cover a period of work—for example, three hours, four hours or whatever. That approach was the subject of an amendment that was tabled at Committee stage. But the noble and learned Lord the Lord Chancellor made the point that that might well make it more difficult to exercise responsible control over public expenditure and it would therefore be preferable to retain a cash figure rather than a reference to hours of work. Nonetheless, he said in terms that he was willing to consider the matter.
The thinking behind this amendment is that it is flexible, and that it is intended to react to what were received in Committee as sympathetic comments by the noble and learned Lord. It does not require the Lord Chancellor to change the limit every year. It does not require him to set the level at any figure. Therefore the way in which I put the argument in support of this amendment to the noble and learned Lord is to remind him that sometimes when amendments are proposed which would impose duties—for example, to set up legal services regional committees—the noble and learned response is, "No, that would be too rigid".
Sometimes we seek to take a discretion away from the noble and learned Lord; for example, the power to dissolve the Legal Aid Advisory Committee, on which we look forward to a debate and on which he continues to reserve his case. Thus far we anticipate that the argument may be, "Do not take the discretion away from me because I and my successors will certainly exercise the discretion wisely". Sometimes—if the noble and learned Lord will forgive me—even when a good amendment in principle is proposed the noble and learned Lord says, "It is not quite right; it is not quite perfect. Therefore I cannot recommend its acceptance".
This amendment obliges the noble and learned Lord to do nothing more than think again on an annual basis. I hope that the noble and learned Lord can accept that this amendment only requires him to review annually the financial limits which are vital for the green form scheme to be seriously effective in practice rather than a sham.
The Lord Chancellor: My Lords, in Committee I said in answer to the amendment to which the noble Lord, Lord Irvine of Lairg, has referred that I would consider the matter. Theoretically, an amendment of
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this kind, if put into effect, ought to produce an administrative saving in the way that the noble Lord has suggested. My information is that when amendments have taken place in the past on the limit, they have produced not a saving but a net cost. I am not entirely clear why that should be.
In very broad principle. I am sympathetic to the amendment that is proposed. If the noble Lord will allow me, I should like to consider it further. I do not promise that I shall be able to do anything but I undertake to write to him with conclusions. I have not had proper opportunity thoroughly to understand what happened on earlier alterations and how those affected the situation. One can see that at the margins there will be occasions when a solicitor may go over the £50 limit but does not trouble to do the administration required to cover the balance. When one raises the limit one has to pay for that in effect. That may be the explanation.
However, I have not had time properly to understand what has happened on previous alterations. I have to be careful about this, as the noble Lord will appreciate. I undertake to consider the matter further and to write to him in time for him to put forward an amendment such as this, or along these lines, for Report if I am not able to meet his amendment any further.
Lord Irvine of Lairg: My Lords, I could now (but for obvious reasons do not) seek to answer some of the concerns which the noble and learned Lord has expressed. However, plainly in view of the potentially sympathetic and co-operative posture that he has struck, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 12 [Costs of successful unassisted parties]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 15:
Page 9, line 31, after ("section") insert ("in respect of any costs").
The noble and learned Lord said: My Lords, this amendment should be taken with Amendments Nos. 17,21, 32, 34 and 39.
There are two places in the Bill where a similar problem arises. One is in Clause 12 and the other is in Clause 17. The costs that are incurred by an unassisted litigant against an assisted litigant at first instance where the unassisted litigant has been successful are awarded against public funds—against the legal aid fund—only if the court is satisfied that severe financial hardship will accrue to the unassisted person.
If the legal aid certificate is extended to an appeal, the legally-aided person has then a second bite at the cherry and the ordinary rule of general equity comes in. But it is not intended that the appeal court should have power to award costs at first instance except under the conditions that apply at first instance. That is the present situation.
On looking closely at this clause in the light of the points raised in Committee, I was advised that the clause may not carry out exactly that intention. These amendments that I propose to Clause 12 are intended to make the position clear in relation to Clause 12. Amendments Nos 32, 34 and 39 make the same point in relation to Clause 17 where a similar situation arises.
These are technical amendments intended to give effect to the policy that I have described. There are amendments that we shall consider in a little while that would alter the policy. I am therefore not going into that at the moment. I simply give this explanation in support of this amendment.
On Question, amendment agreed to.
8.30 p.m.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 6:
Page 9, leave out from beginning of line 34 to ("and") in line 37.
The noble and learned Lord said: My Lords, I beg to move Amendment No. 16, which is substantially similar to though not identical with an amendment moved by the noble and learned Lord, Lord Silkin, at Committee stage. Broadly speaking, it removes the criterion of severe financial hardship to which my noble and learned friend on the Woolsack has just referred. In effect, it removes Clause 12(4)(b). If carried, it will require slight tidying up, purely technical, at Third Reading.
The background of this clause—as noble Lords know, and as my noble and learned friend has just described—is the conditions under which a successful unassisted person in litigation with an unsuccessful assisted person may be reimbursed for part of his costs from the legal aid fund.
The general background is that there are countless disputes in society of which only a very few come in to court. They come into court because one of the parties to the dispute has either resisted a claim that is rightly made or wrongly asserted a claim. When that situation arises, in other words when a disputant is forced into court to vindicate his rights, it inevitably causes loss. Costs are incurred. The normal rule, as my noble and learned friend has just said—he called it the equitable rule—is that costs will then follow the event. The successful party will get his costs, partly at any rate, from the unsuccessful party. That is not an absolute rule. There are exceptions with which your Lordships will not be concerned and there is a general discretion in the court as to costs.
The situation which your Lordships are considering is where a claim has been wrongly financed by a legal aid body so that a successful defendant, as the clause now stands (although there is an amendment in that respect), has been forced wrongly into litigating in order to vindicate his right and has suffered loss. The question is who should bear that loss: the innocent unassisted party who has suffered loss through no fault of his own or the public body which has financed an unsuccessful claim against him?
In fact it is very much narrower than that because your Lordships will see in subsection (4)(a) that costs may only be made if they are made apart from the legal aid scheme. Moreover, if your Lordships read subsection (6) it refers only to party and party costs. There are three, possibly four, levels of costs which are recoverable and party and party costs are the lowest. Thus it is only a very small amount of the loss that is suffered by the unassisted party through a
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public fund having mistakenly financed an action against him for which he can be reimbursed.
I said "wrongly financed". I ought to make it clear that legal aid bodies make thousands of decisions each year and there are very few mistaken decisions and very few complaints. They obviously make mistakes, just as Ministers, judges, counsel and solicitors make mistakes, because they are human beings. Part of the drawback of being a human being is that one is fallible. So it is really only a question of where justice lies.
The crucial test is in subsection (4)(c). The court may only order the legal fund which has financed wrongly an action to compensate in part the unassisted successful party if it is just and equitable for that to be done. As I ventured to say at Committee stage that should really be an end of the matter. If it is just, he should be reimbursed, at any rate to the limited extent permitted by the rest of the clause. If it is equitable, he should be reimbursed. But over and above that there is the test in paragraph (b) that he is not to be reimbursed, notwithstanding that it is just and equitable that he should be, unless he can show that he has suffered "severe financial hardship". That is an extremely vague test and perhaps I may say from personal experience that it is an extremely difficult test to apply. But what is the situation? It means that he cannot be compensated because he has not suffered severe financial hardship, notwithstanding that it is just that he should be compensated. He cannot be compensated, notwithstanding that it is equitable that he should be.
The Bill is part of the machinery of justice. This is a piece of ex hypothesi injustice because it is something that imposes a test that goes beyond justice and beyond equity. It can only be justified if it be the case that to sacrifice that additional criterion is more than can be afforded. I ask my noble and learned friend on the Woolsack if he will say what the estimate of cost is, because he must have inquired about that. The costs could be very high indeed that would justify what is an injustice and an inequity as regards a Bill which is designed to promote justice and equity. I beg to move.
Lord Ackner: My Lords, I should like to support the amendment. As my noble and learned friend Lord Simon of Glaisdale has said, unless subsection (4)(b) is excised there is, on the face of the Bill, an injustice and an inequity because it follows that the court is deprived of the power to do justice or to do equity unless a further condition "severe financial hardship" is established. It cannot be mere financial hardship; it must be severe financial hardship. Therefore a person who cannot prove that, but perhaps can prove only financial hardship, leaves with an injustice and an inequity forced upon him by the statute. My noble and learned friend Lord Denning gave your Lordships an example of such a case during the Committee stage.
A point to be borne in mind is that as a result of the proposals in the Bill a defendant who is not legally assisted will have the opportunity of making representations as to why a certificate should not be granted. If he makes those representations and fails,

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and he succeeds in court on the basis of his representations ex hypothesi unsuccessful before the committee, then it is a gross injustice and inequity that he should be left suffering hardship.
There is a further point. No doubt this will involve the Exchequer in expense. If the demands on the public purse are too great, no doubt that will be an end of the matter. However, a great deal of the wasted money in the legal aid system is the result of unnecessary certificates being granted. If the legal aid committees know that one of the consequences of not listening attentively and sensibly to representations made by the non-legally aided party as to why a certificate should not be granted results in a loss occurring on the fund, not only on appeal but at first instance, greater care may be taken in the grant of the certificates and as a result a great deal of money could be saved. Although on the face of the matter this provision may raise a charge on public funds, in the long run it may not be anything like as significant as might be thought.
Lord Renton: My Lords, I have doubts as to whether it would be wise to leave out paragraph (b) because one might have a successful, unassisted party in the proceedings who happened to be a very rich man. The costs in which he might be involved would, in relation to the circumstances, be a fairly small matter. In those circumstances it is difficult to understand why public funds should bear the cost.
However, I agree with my noble and learned friend Lord Simon of Glaisdale that the test of severe hardship which is imposed will present difficulties in judicial interpretation. I do not want to anticipate Amendments Nos. 19 and 20, but I believe that when we discuss them we shall find a sensible solution in regard to this matter.
Lord Meston: My Lords, I also wish to support the amendment. The argument put forward by the noble and learned Lord the Lord Chancellor in Committee was that the problems of the unassisted party who succeeds against a legally aided litigant should diminish in numerical terms with the power to be given by the Bill. That would enable the unassisted potential opponent to make representations to the board at the stage when the granting of legal aid is being considered. As the noble and learned Lord, Lord Ackner, has illustrated, that seems to be a two-edged argument. If the board rejects the view of the unassisted party and grants legal aid to someone who then goes on to fail before the court, in the face of the opposition of the potential opponent, the unassisted opponent must have an additional grievance under the proposed system. His grievance can only be increased if he is told that although he has suffered hardship he can have no redress against the legal aid authorities because he cannot demonstrate that his hardship is sufficiently severe.
The necessary step forward might simply be the removal of the word "severe", as the noble Lord, Lord Renton, has suggested. That has not been introduced into the Bill as a new issue but it has existed under previous legislation. However, as this Bill is meant to look to the future, it may now be
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appropriate to take the opportunity to remove the word "severe", if nothing else.
8.45 p.m.
Lord Coleraine: My Lords, I should like to echo the words of my noble friend Lord Renton. I do not think that this amendment is the right one. My noble friend mentioned the case of the unassisted rich litigant but there are also many cases where the amendment would be of benefit to those who are fully supported by insurance companies. This is not the amendment which the noble and learned Lord, Lord Silkin, moved in Committee. That amendment excluded the benefit of change from the unassisted plaintiff. I think that there is a case for benefiting the unassisted defendant who is successful. I hope that when we reach Amendments Nos. 19 and 20 we shall find a solution which is acceptable to your Lordships.
The Lord Chancellor: My Lords, the position which I have described has obtained in the legal aid system since its inception. The three words contained in the phrase "severe financial hardship" are reasonably common. The question of their application to particular circumstances is a matter for judges; but judges are accustomed to making decisions, applying simple words to a variety of circumstances. In this case they have the additional provision that:
"no appeal shall lie against an order under this section, or against a refusal to make such an order, except on a point of law".
That is to say, it is recognised that there is an element of judgment in applying the phrase to any particular situation, and it is one of which the judges are perfectly capable.
The legal aid system is designed to help people who would otherwise be unable to litigate because of shortage of funds to raise litigation. Many of those against whom litigation is raised are financial institutions of considerable strength. Insurance companies have been mentioned; the state is a litigant on occasions; and many corporations are the defendants in litigation.
When the legal aid system was set up it was thought reasonable that where a person could show that he suffered severe financial hardship by a case being allowed to proceed against him, he, then succeeding, should be entitled to recover the costs at public expense, recognising severe financial hardship. However, where a litigation was conducted at public expense against someone who was not thereby occasioned severe financial hardship, it was reasonable that the expenses, at first instance, should fall where they had originally fallen.
The legal aid fund, the Law Society at present, and the Legal Aid Board in due course, require to ascertain whether the application or legal aid satisfies the merits test; that is to say, whether it is reasonable to litigate on the basis of the matters which the plaintiff can put forward. There is a merits test at that stage. The litigation is not supposed to be started without reasonable cause. That does not mean that the litigation will necessarily be successful, but it must be reasonably started. The mere fact that the litigation failed does not show that the legal aid committee made a mistake any more than an

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acquittal shows that a prosecution should never have been brought. The two are quite different. As I say, the mere fact that the litigation has failed does not show that it was not a reasonable matter for the public to fund through the legal aid fund. That is the basis of this justice which has been set up for some time.
It is said—and I appreciate the way in which it is put by my noble and learned friends Lord Simon of Glaisdale and Lord Ackner—that this involves an element of injustice. Justice is a practical concept, and the question is whether it is necessary in order to achieve practical justice that every unassisted litigant who happens to succeed against a publicly-funded litigant should be entitled to his costs just as if the public funds were not available and involved at all. The fact that it is a public function which is being served appears to me, as it appeared to those who set up the scheme orginally, to justify practical justice in recognising severe financial hardship where it is occasioned by the funding of the litigation and not otherwise. So far as concerns the first instance, at the higher levels if the legal aid fund goes on to fund someone to an appeal, and possibly a further appeal, then it is quite reasonable that the unassisted litigant should be entitled to the ordinary basis of costs for those further steps. However, that appears to me to do practical justice for the first step reasonably taken.
I am not able to estimate precisely what the cost will be to give effect to the amendments, but I believe it is quite likely to be substantial. My noble and learned friend Lord Ackner suggests that in practical terms it may not make much difference because it will impose a new sanction on the legal aid authorities. As I said already, the fact that the case is ultimately unsuccessful is not the test of whether the legal aid authorities were right to grant legal aid in the first place. I think your Lordships would be slow to approve anything which would have the effect of leading the legal aid fund to refuse to grant applications reasonably made on the footing that in their judgment, without hearing the whole case as a judge would, the case is not likely ultimately to be successful. Therefore, the sanction might achieve more in the way of ultimate injustice than at first sight appears. I invite your Lordships to adhere to the practical balance of practical justice which obtains at present and I am not personally aware of very many occasions where it has resulted in practical injustice.
Lord Simon of Glaisdale: My Lords, I omitted to say what I should have said. I tabled this amendment in a starred form because it was only yesterday evening that I learned that the noble and learned Lord, Lord Silkin, (who I had understood was going to table a similar amendment) was ill. It is for the same reason that I put my name to the amendments which stood in the name of my noble and learned friend Lord Denning because he unfortunately is unwell and has been advised not to come here this week. I have known him for over 50 years and it is the first time I have ever known him to take advice; but your Lordships will think that he is very wise in having done so, and I know would wish a message of sympathy to go to him and to the noble and learned Lord, Lord Silkin, wishing them a rapid recovery.
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Perhaps I may turn to the argument of my noble and learned friend the Lord Chancellor. With great respect, he is mistaken in saying that this has been in the legal aid scheme from the beginning. It came into the legal aid scheme as a result of a notorious case called Auten v. Rayner, which was conducted by a legally aided plaintiff against a gentleman who was by no means wealthy but above the legally-aided limit. It went on for day after day, and by the end of the case the defendant, although successful, was ruined. As a result, an amendment was brought in which was in this form that in the first instance for the unassisted party you had to show severe hardship but in the Court of Appeal you merely had to show hardship. That has disappeared. The Lord Chancellor says that it is right that costs should follow the normal course in the Court of Appeal; and so they should, even though the respondent may be amply insured. He may be a millionaire but costs follow the event there; and so they should at first instance, unless your Lordships are going to countenance what is prima facie—and the noble and learned Lord the Lord Chancellor does not gainsay this—unjust and inequitable. I do not yield to the arguments of my noble and learned friend on the Woolsack; but I confess that I yield to his lobby potential and therefore I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 17:
Page 9, line 34. leave out ("in the case of costs of proceedings'") and insert ("as respects the costs incurred").
The noble and learned Lord said: I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 18:
Page 9. line 35. leave out ("those proceedings were instituted by the assisted party and").
The noble and learned Lord said: My Lords, I put my name to this and the other amendments in the name of my noble and learned friend Lord Denning at his request when he telephoned me yesterday with the news that he could not be here today. I told him that I certainly would do so, and that I would certainly lay them before your Lordships although I was not completely convinced as to the validity of all of them. However, of this I am entirely convinced. That means that a defendant shall be put in the same position as a plaintiff.
Normally it is the legal aid fund which finances an action at the instance of a plaintiff, but it may not do so; it may be an unassisted plaintiff and the legal aid fund finances the defence. It has made a mistake. It has made a mistake because legal aid committees are composed, even when they are applying the merits test, of fallible human beings. I remember one case where the legal aid area committee was furnished with counsel's opinion that an appeal to the Divisional Court was likely to succeed on five grounds but was almost certain to succeed, as it did, on one of them. In fact, it succeeded on all five.
The legal aid committee, applying the merits test and assisted in every way that it can be assisted, is yet composed of fallible human beings. Therefore, it can

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make a mistake in wrongly financing a plaintiff or wrongly financing a defendant. In my respectful submission, the amendment proposed by my noble and learned friend Lord Denning, to which I have put my name, should commend itself to your Lordships.
There is one other thing I should have said in relation to the earlier amendment. What I said (and the noble and learned Lord the Lord Chancellor's answer) relates equally to Amendment No. 33. This relates equally to Amendment No. 35. I beg to move.
9 p.m.
Lord Renton: My Lords, I have some doubts about Amendment No. 18, but on balance the words,
"those proceedings were instituted by the assisted party and",
should remain in the paragraph. It means therefore that this paragraph only applies to successful unassisted defendants.
I have great sympathy, as your Lordships will have understood from what I said earlier, with Amendments Nos. 19 and 20. Apart from the question of judicial interpretation, to which I shall return in a moment, I think that for the successful unassisted defendant to have to prove severe hardship could, in many cases, be too harsh a test. The practical justice of the matter, if I may borrow that phrase, would surely be better met by using the expression "appreciable loss". One need not elaborate on that; I should have thought that it is plain from the use of the words themselves.
I come now to the question of judicial interpretation. Severe hardship is a matter of opinion where one judge may very much vary from another.
Lord Simon of Glaisdale: My Lords, may I interrupt the noble Lord? I have not yet moved Amendments Nos. 19 and 20. I moved Amendment No. 18.
Lord Renton: My Lords, I beg your Lordships' pardon. I hope I have not wasted time. I understood that we were also discussing the other two amendments tabled by the noble and learned Lord, Lord Denning. In that case, I must now sit down but hope to return to the point.
The Lord Chancellor: My Lords, I shall seek to deal with that point in due time. What I said about the earlier amendment applies also to this matter. I am grateful to my noble and learned friend Lord Simon of Glaisdale for correcting me. I believe I began with the phrase, "For a long time it has been part of the legal aid system", and then slipped into saying, "From the beginning". My noble and learned friend is right. I think that originally the balance was even worse and was improved in favour of unassisted persons by the amendment to which he referred.
My noble friend Lord Coleraine says that originally there was no balance. It is a balance between public desire to help the needy and the possible consequences of that for other people who are not quite so needy. As I said, the same situation applies in this amendment. The idea is that the initiative requires to be taken by the assisted person
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because the severe hardship has, in effect, been caused by the fact that a litigation has been started with public support, causing that severe hardship. If the severe financial hardship has not been caused in that way, there is even less of a case for making the award. For those reasons, in my view this amendment should not be supported.
Lord Simon of Glaisdale: My Lords, with that explanation, my noble and learned friend certainly has not explained why there should be any difference between a plaintiff caused severe financial hardship and a defendant caused severe financial hardship. That is the crux of the amendment of my noble and learned friend Lord Denning. That has not been explained. However, once again I yield for the same reasons I did previously and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 19:
Page 9. line 36, leave out ("severe") and insert ("appreciable").
The noble and learned Lord said: My Lords, this amendment can conveniently be taken with Amendment No. 20. My noble and learned friend Lord Denning wanted to replace the words "severe financial hardship" with the words "appreciable loss". There are two comments to make on that. First, this proposal commends itself to so great a lawyer as my noble and learned friend Lord Denning. Secondly, the noble Lord, Lord Renton, is straining at the leash—in fact, he has already burst from the leash!—in order to speak in favour of this amendment. I beg to move.
Lord Renton: My Lords, if I may strain at the leash without leaving my kennel, I should like to say that it seems to me that judges are going to find it difficult in many cases to decide whether there has been severe financial hardship. In any event, I think it is too stringent a test. However, the expression "appreciable financial loss' would enable the justice of the case to be met in most circumstances that one could imagine.
I feel that there is a great deal to commend these two amendments. The same point arises on Amendments Nos. 36 and 37 and perhaps we may be allowed to refer to those in order to save time and the need to repeat the arguments that we are using now. I hope that my noble and learned friend the Lord Chancellor will regard with sympathy what has been said on Amendments Nos. 19 and 20.
Lord Coleraine: My Lords, I should also like to support the amendment put forward by the noble and learned Lord. We have established that the balance to which my noble and learned friend referred dates back to 1964 and the Legal Aid Act of that year. Since that time litigation funded by the state has greatly increased as also has the wealth of the nation. It is high time that serious thought was given to shifting the balance a little towards the unassisted defendant who stands to suffer gravely from the law as it is at the moment.

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Perhaps I may declare an interest. If I were an unassisted defendant not backed by an insurance company, almost certainly I should have to settle at almost any price if I felt that the state was against me and there was any doubt about my case. My noble and learned friend, in summing up an earlier debate, said that he was not aware of many cases where injustice has been caused in respect of the law as it stands. The reason for that may be that many people cannot afford to litigate with the legally-aided plaintiff. The only comment I wish to make on the actual wording of the two amendments is that they seem to me to present no difficulties. Perhaps it would give greater grounds to the unassisted defendant if in Amendment No. 20 "hardship" was left in and the words "or loss" were inserted after the word "hardship".
Lord Meston: My Lords, I agree with those last words. Speaking for myself, any loss is appreciable. The hardship caused by the present law arises from the use of the word "severe" and the difficulty in proving severe hardship as distinct from ordinary hardship. If the word "severe" was removed a great deal of the injustice which has been talked about would be eradicated.
The Lord Chancellor: My Lords, with regard to the last point made by my noble friend Lord Coleraine, I appreciate that if one has limited resources and is faced by the state either in the form of a legally-aided litigant or otherwise, there is a certain amount of difficulty in resisting if one can settle reasonably within one's means. If the cost is too high then perhaps it does not matter anyway. If one can settle within one's reasonable means it is obviously a wise precaution. I am not at all clear how this particular amendment, if it were given effect, would alter that situation because one has to win a case before it applies. Therefore it is necessary to fight it out. I believe that the same problem would still arise.
The result of Amendments Nos. 19 and 20 would be to insert the words "appreciable loss". That is just another way of saying that if the defendant succeeds he will always get his costs because, subject to the other conditions, in the ordinary course of events the costs will be not insignificant if the litigation is of any size at all. He will not have any benefit from the costs and therefore there will be appreciable loss. If one is to have a test which is as easy to pass as that, it is as well not to have a test at all.
At present the situation is one in which hardship has to be shown and it must be hardship of a degree sufficient to qualify as "severe" in the opinion of the particular judge. That is a matter for the judge who tries a particular case and it is a very effective way of preventing injustice. Severe financial hardship would amount to an injustice to the successful defendant, but something less than that, in reasonable terms, would not amount to such an injustice that the state should be compelled to contribute.
As far as I can see, if this clause is amended in accordance with Amendments Nos. 19 and 20, it will
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have the result that all the major litigants to whom I have referred: namely, insurance companies, the state, and the like, would all be entitled to costs out of public funds if they managed to succeed against an assisted plaintiff. That cannot be a good balance to strike at this time. I am perfectly content that one should look again at the balance. I believe that the balance that was struck in the light of the case to which my noble and learned friend Lord Simon of Glaisdale referred is a good one. It was struck in the light of particular circumstances and I humbly suggest to your Lordships that we cannot improve on it.
9.15 p.m.
Lord Simon of Glaisdale: My Lords, I am grateful to the noble Lord, Lord Renton, for reminding me that in moving Amendment No. 19 and speaking to Amendment No. 20 I was speaking also to Amendments Nos. 36 and 37.
Once again, I am completely demoralised by the lobby power behind the argument of my noble and learned friend on the Woolsack. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Chancellor The Lord Chancellor moved Amendment No. 21:
Page 9, line 39. leave out ("those") and insert ("the").
The noble and learned Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 13 [Scope of this Part]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 22:
Page 10, line 39, at end insert ("representation under this Part shall he available to any person to and in accordance with sections 14 and 15 ").
The noble and learned Lord said: My Lords, I have already spoken to this amendment as one of those that follow the technical necessities arising out of the amendment made to Clause 7. I beg to move.
On Question, amendment agreed to.
[Amendment No. 23 not moved.]
Clause 14 [Availability of, and payment for, representation under this Part]:
Lord Simon of Glaisdale Lord Simon of Glaisdale moved Amendment No. 24:
Page 11, line 15, at end insert ("and, except in an emergency, the other side has been given a fair opportunity of being heard.").
The noble and learned Lord said: My Lords, this is yet another amendment that I move at the request of my noble and learned friend Lord Denning. It gives the right of hearing to the other party (the party other than one applying for legal aid or assistance) when the merits are considered. My noble and learned friend on the Woolsack has already referred to the advantage of that, and my noble and learned friend Lord Denning wants to see it on the face of the primary legislation. I beg to move.
The Lord Chancellor: My Lords, as has already been said, the intention is to introduce a system under which a person against whom action is proposed to be raised, assisted by public funds, will have an opportunity to make representations before a decision is taken in the ordinary case to grant the application. That was announced by the Government in the White Paper. The intention is to alter the present regulations to give effect to that.
The idea is that the opposing party should be able to bring any relevant information to the attention of the legal aid authorities before a decision on the application is made. I am not at all certain at this juncture that it would be wise to make provision for a hearing. The ordinary circumstance would be that the representations would be considered by the legal aid authorities at the time they were considering whether or not to grant the application. There is no intention that the trial of the case should take place in the legal aid office before proceedings start. The intention is to help the legal aid authorities to check any information they have in relation to the party's means, because sometimes representations may have some bearing on that; and also to bring attention to any particular problem that may arise on the merits test in the applicant's case.
In answering the amendment, I suggest that the matter is one best dealt with in regulations and that the particular conditions to be attached to the representations ought to be capable of alteration in the light of experience. This system has worked satisfactorily north of the Tweed for quite a long time, and I think there is a reasonable prospect therefore that it may function equally satisfactorily on this side of that border. I suggest that while considerations of that nature are relevant to such proposals, they are best dealt with by regulations.
Lord Simon of Glaisdale: My Lords, I must have sounded somewhat ungracious when I withdrew the previous amendment which I had moved. However, in relation to this amendment, I am wholly convinced by what my noble and learned friend on the Woolsack has just said. I beg to withdraw the amendment.
Amendment. by leave, withdrawn.
Lord Allen of Abbeydale Lord Allen of Abbeydale moved Amendment No. 25:
Page 11, line 24, at end insert—
("( ) Notwithstanding any provision in this Act or regulations, a person or group of persons who require representation to rebut the development risks defence under section 4(1)(e) of the Consumer Protection Act 1987 shall be granted representation without regard to their financial resources.").
The noble Lord said: My Lords, I am not a lawyer, and I rise with considerable diffidence to move the amendment, especially after re-reading the debate in Committee on the amendment which dealt with "class actions"; but this amendment is a good deal narrower and more specific than that one. If it would help and remove any doubt, I would not regard it as essential to retain the reference in the amendment to a "group of persons".
I like to persuade myself that it would not be unfair to claim that the amendment could assist the
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Government to carry out the policies which they themselves enunciated during the passage of the Consumer Protection Bill, which I think is due to come into force next month. Section 4(1)(e) of the Act in the form in which it unhappily eventually emerged, provides that it shall be a defence to an action for injuries caused by a defective product if the producer can show that the state of scientific and technical knowledge at the relevant time was not such that a producer of similar products could be expected to have discovered the defect.
The Government justified the provision for that special defence largely on the ground that it was required in the public interest to ensure that enterprise and initiative were not stifled. But they went on to say, time and again, that the defence could rarely be successfully invoked.
The Government explained that the reversal of the burden of proof would make it difficult for any producer to establish that defence. They spelt out the various obstacles which any such attempt would encounter. It was abundantly clear from what the Government said that if a producer set about invoking such a defence he would be likely to be put to a great deal of trouble and expense in mounting the array of technical and expert evidence which would be required and in meeting the requirements, for example, of demonstrating that no other producers of such products had the knowledge available to them at that time. What is to happen if, in practice, the producer decides to raise that defence? Is the plaintiff not at risk of being put in an impossible position? Hardly any individual, however rich, could hope to be able to parade all the scientific and other expert evidence which would be necessary to rebut the defence. Moreover, the plaintiff would be likely to be faced with an enormous bill if he lost. Is there not a real danger that the special defence of "development risks" could in practice succeed by default, although we were assured that it could rarely, if ever, hope to succeed on the merits?
The amendment suggests that if the defence of "development risk" were raised, it is in the public interest that the issue should be properly argued in court; that can be done only if public funds stand behind the plaintiff. It would be totally unsatisfactory if everything should turn on whether the plaintiff happened to come within the limits for legal aid. This would not be the first time that provision was made for legal aid from public funds without a means test, as I understand it. Section 170 of the Housing Act 1985 seems to empower the Secretary of State to do just that in connection with the right to buy.
I do not think that an amendment on the lines that I suggest would necessarily cost a lot of money. If it were known that adequate resources were going to be available to a plaintiff to resist this special defence, the chances are that the defence would be raised only rarely and only after the most careful thought. If the defence was nevertheless pursued, it seems to me right that the issue should be properly argued out. I do not think the Government would quarrel with the view that it is in the public interest to discover why a dangerous product has been put on the market. If they were right in what they said, it would be pretty

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rare for the defence to succeed with the legal aid fund left holding the bill.
One other point arises. Under the EC directive put into force by the Consumer Protection Act, in 10 years' time it would fall to be considered whether the defence of development risks should continue at all. Under the directive it is optional at present. This country will be in no position to make a sensible contribution to the debate on the issue unless in the meantime steps have been taken to ensure that when this special defence is raised it is properly threshed out in court and we all know what is involved. I am only too conscious of the difficulties in the path that I am treading. However, I am convinced that there is a real problem here and that if we do not tackle it in one way or another there is trouble ahead. I beg to move.
Lord Morton of Shuna: My Lords, with diffidence, I support the amendment. We tend to think of the development risk defence mainly in connection with class actions like thalidomide cases, Opren cases and suchlike. However, this can deal with the individual case such as the old case of Davies v. The New Merton Board Mills Ltd. where somebody got something in his eye from a faulty chisel. That type of case could just as easily come up where a person outwith the legal aid levels would suddenly be met with a defence needing expert evidence on the state of scientific and technical knowledge at the time of his injury or at the time of the manufacture of the article and evidence of what the producer of similar products would be expected to know. That would be a very expensive defence to have to meet. If justice is to be done, it appears that that defence would require to be met and not merely led unchallenged. The cost of meeting it, for the reasons that the noble Lord, Lord Allen of Abbeydale, has described, should be met by the state in such a case.
9.30 p.m.
The Lord Chancellor: My Lords, the argument put forward by the noble Lords, Lord Allen of Abbeydale and Lord Morton of Shuna, suggests to my mind that it is based on the idea that where there is open a rather costly line of defence the plaintiff should be entitled to legal aid.
It is true that the point addressed here arises under the recent statute shortly to come into force. I suppose that there might have been a case for saying in that Act that because of some special situation envisaged there, Parliament should have provided the same right they gave to the Secretary of State in respect of the right to buy. The situation in respect of the right to buy is rather a special one. It depends upon the statutory background in question and the feeling that it might not be worthwhile a tenant taking on the might of a local authority. However, it might be in the interests of the general body of tenants that litigation should be funded. The Secretary of State was empowered in that situation to mount such an attack, such as litigation. In the present case, on the basis of the amendments which have been produced, there is no necessary implication that anyone will benefit from this case but the plaintiff.
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I can well see that if a plaintiff were faced with this sort of defence and had more money than made him eligible for legal aid, he would like to have this amendment. Obviously, a generously-minded person would be glad if he had it. Unfortunately, it would be very difficult to persuade the person seeking to establish a complicated medical negligence claim for a very serious injury that he was being fairly dealt with if he did not get legal aid on the same basis. Thus, as far as I am able to judge, there is nothing special about this type of case which should bring it out of the ordinary rules with regard to legal aid.
I undertook at the Committee stage to look at the class action and there is an amendment later which might raise that more specifically. Perhaps it would be then that I ought to say what I have to say about it. But, as the noble Lord, Lord Allen of Abbeydale, said, in moving this amendment, it is not necessarily a class action at all. Although it may be expressed to include a group of persons, the argument would apply equally to a single person affected by this development risks defence.
I find it difficult therefore to justify making a special case of this situation against the general background to which I have referred. While I understand perfectly the motivation in putting forward the amendment, I feel that it would not be fair to make this innovation in the legal aid system.
Lord Allen of Abbeydale: My Lords, I should like to consider carefully what the noble and learned Lord has said before coming to any conclusion. I would simply make the point that this is a special defence in a very special sense in that there is this general provision in the Consumer Protection Act to rule out the defence of negligence. Here is a way left open for a defence which could mean that we would have another thalidomide case.
We argued at the time that it was a mistake to have the defence in the Act at all, and I still remain of that view. I hope that within the next decade it will go, but having said that, I should like to consider what has been said. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 [Reimbursement of Board by contributions and out of costs or property recovered]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 26:
Page 11, line 40, leave out ("amount of the").
The noble and learned Lord said: My Lords, this amendment falls to be considered along with Amendments Nos. 27, 28 and 29. The purpose of the amendment is to make clear the two distinct elements of contribution which we wish to provide for: the possibility of a lump sum or capital contribution and a payment which runs for a period. As was made clear in the White Paper of the Government, the intention was that the obligation to pay on this income basis should continue for as long as the case might last.
The primary provision in these amendments, particularly in Amendment No. 29, would allow contributions of the income kind, the periodical payments, to run for the whole period of the case. On

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Committee stage my noble and learned friend Lord Ackner and other noble Lords drew attention to the possibility that in some situations that might not be fair. For example, if the plaintiff's case were stayed to enable some test case to be disposed of, where nothing was really happening it might be unfair that the periodical payment should then continue. On the other hand, there is always a slight advantage in the plaintiff himself having an incentive for the case to be brought to some conclusion. Therefore, there is some force in allowing payments for the period of the case in the general situation.
The amendment allows the regulations to make the payments of the periodical kind payable during the course of the case or any shorter period. I may not need to remind the House that the total to be paid is in no case to exceed the cost of litigation to the legal aid fund, so there is no question of the legal aid fund making any sort of profit out of its plaintiffs. The object is rather to make as unobtrusively and with as little hardship as possible arrangements for the plaintiffs to contribute to the cost of the legal aid fund. I beg to move.
On Question, amendment agreed to.
The Lord Chancellor The Lord Chancellor moved Amendments Nos. 27 to 29:
Page 11, line 41, leave out ("such as is").
Page 11, line 42, at end insert ("and may take the form of periodical payments or a lump sum or both").
Page 11, line 43, leave out subsection (3) and insert—
("(3) The contribution required of a person may, in the case of periodical payments, be made payable by reference to the period during which he is represented under this Part or any shorter period and, in the case of a lump sum, be made payable by instalments.").
The noble and learned Lord said: My Lords, I have spoken to Amendments Nos. 27, 28 and 29. I beg to move.
On Question, amendments agreed to.
[Amendment No. 30 not moved.]
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 31:
Page 12, line 34, at end insert—
("( ) Any regulation made for the purposes of section 14 or section 15 shall not come into force unless or until approved by resolution of each House of Parliament.").
The noble and learned Lord said: My Lords, will the noble and learned Lord explain why it has been decided not to cover these regulations by the necessity for affirmative resolutions in view of the fact that they appear to affect matters fundamental to the nature of representation available and the personal cost. Will the noble and learned Lord explain why he has not extended the embrace of the affirmative resolution to these regulations?
The Lord Chancellor: These regulations on financial eligibility and criteria for determining whether it is more appropriate for the applicant to be given assistance by way of representation rather than civil legal aid for the amount of contributions and in respect of the statutory charge have been covered by the ordinary procedure in the past. The regulations on that sort of matter are very largely self-explanatory, and to bring the matter to the House in order that an explanation be given affirming the reason for them would be wasting your Lordships'
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time, I venture to think. That is the reason I did not apply the affirmative procedure to this group of regulations.
Lord Renton: My Lords, is it not also the case that these regulations will not create any rights for individuals? They are the administrative machinery for asserting rights that have been granted elsewhere.
Lord Elwyn-Jones: My Lords, in view of the explanations which have been given, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 [Costs of successful unassisted parties]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 32:
Page 13, line 15, after ("section") insert ("in respect of any costs").
The noble and learned Lord said: The amendment is a mirror of the amendment made in respect of Clause 12, to which I have spoken. I beg to move.
On Question, amendment agreed to.
[Amendment No. 33 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 34:
Page 13, line 18, leave out ("in the case of costs of proceedings") and insert ("as respects the costs incurred").
The noble and learned Lord said: My Lords, I have spoken to the amendment and I beg to move.
On Question, amendment agreed to.
[Amendments Nos. 35 to 38 not moved.]
The Lord Chancellor The Lord Chancellor moved Amendment No. 39:
Page 13, line 23, leave out ("those") and insert ("the").
The noble and learned Lord said: My Lords, the amendment is one to which I have already spoken in respect of Clause 12. I beg to move.
On Question, amendment agreed to.
[Amendment No. 40 not moved.]
Clause 18 [Scope of this Part]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 41:
Page 14, line 27, at end insert—
("and representation under this Part shall be available to any person subject to and in accordance with sections 20, 21, 22 and 23.").
The noble and learned Lord said: My Lords, Amendment No. 41 is a technical amendment consequent upon the amendment to Clause 7. I beg to move.
On Question, amendment agreed to.
Clause 20 [Availability of representation under this Part]:
Lord Elwyn-Jones Lord Elwyn-Jones moved Amendment No. 42:
Page 16, line 23, at end insert—
("The factors to be taken into account by the competent authority in determining whether it is in the interests of justice that representation be granted in any case shall include the following—

(a) where there is an appreciable risk that in the event of conviction, the defendant would lose his liberty or suffer serious damage to his livelihood or reputation;

(b) that the charge raises a question of law which may be in dispute and which goes to the merits of the charge;

(c) where the accused would have difficulty in following the proceedings and stating his own case because of his inadequate knowledge of English, mental or physical disability or illness, age, or other infirmity;

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(d) where the accused would have difficulty without professional assistance in carrying out pre-trial preparation (for example, the tracing and interviewing of witnesses) or in dealing with other matters of such nature as render professional assistance desirable; or where there is a need for professional examination-in-chief or cross-examination of witnesses or a need for professional care in the preparation of a plea in mitigation;

(e)When legal representation is desirable in the interest of a witness, for example, in the cases involving sexual offences or offences of violence, or where cross-examination by the accused in person would cause unreasonable stress or suffering to the witness in question.").

The noble and learned Lord said: My Lords, the purpose of the amendment is to embody in primary legislation the criteria for the granting of criminal legal aid. The amendment is in the form of what have been known for a very long time as the Widgery criteria for the granting of criminal legal aid. The form embodied in the amendment includes the revisions suggested by the Lord Chancellor's Legal Aid Advisory Committee in its 34th Annual Report, although without the word "substantial" which qualified the words "question of law" in Ground B.
The criteria are in somewhat similar form in the Legal Aid (Scotland) Act 1986. They have proved of value as guidance to courts having to administer criminal legal aid, and they have stood the test of time well. They are well known to your Lordships and to all who are involved in criminal proceedings. In dealing with a well-known and familiar matter, it suffices for me to move the amendment.
Lord Renton: My Lords, I feel that the difficulty with the amendment, especially in relation to the expressio unins rule, is as follows. While those are the important and most likely factors to arise, by presenting them in this way instead of leaving the matter as one of open discretion, there is a risk that if any other factors are applicable to a particular case, it may he that, because they are not expressly mentioned in the statute, they will be considered to be unimportant and will not be given as much weight or inadequate weight. I should have thought that it might be better when applying the merits test to leave the matter open to discretion and the light of previous experience.
9.45 p.m.
The Lord Chancellor: My Lords, the Bill as it stands creates as the basis on which representation should be granted in this part of the Bill:
"where it appears to the competent authority to he desirable to do so in the interests of justice".
That phrase has the advantage of brevity and, I would submit, of clarity. We all know what justice is, or at least we certainly think we do.
The former Lord Chief Justice, Lord Widgery, gave a very helpful exposition of those words, and the amendment proposed by the noble and learned Lord draws quite heavily on that formulation. As the noble and learned Lord reminded me when we were considering this matter in Committee, these criteria are expressly adopted in the corresponding legislation for Scotland which your Lordships recently passed.
However, it is worth mentioning that in the Scottish legislation, as I understand it, there is a provision for alteration of the criteria by statutory
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instrument. It was appreciated by your Lordships when passing the Scottish legislation that, excellent though those criteria were, they were not perhaps as sacrosanct as the laws of the Medes and Persians and that experience might show that those criteria could be improved upon.
If I were to opt for the interests of clarity and permanence, I think that the Bill as it stands would perhaps be the most satisfactory way forward. However, I can see that there may be occasions on which some help should be given to the competent authorities by expansion of the clause. Therefore, I am inclined to think that it might be reasonable to include those criteria. I think that it would have to be with the power to amend on the lines of the Scottish legislation.
If that course commends itself to the noble and learned Lord, I certainly undertake to consider it very favourably with a view to bringing forward a government amendment at Third Reading. As I say, I am not absolutely convinced; on the other hand, we are contemplating this being done in the future by the Legal Aid Board and by officers on its behalf and I can see that it may have merit. Mere uniformity with Scotland might not be an end in itself, but I can see powerful arguments for saying that what was good in that case is good here.
Lord Irvine of Lairg: My Lords, uniformity with Scotland may not be an end in itself but to some extent it is inherently desirable. The reservation expressed by the noble Lord, Lord Renton, that these factors being mandatory might be thought to be exhaustive could certainly be dealt with by some expression such as "which are not exhaustive". As the noble and learned Lord the Lord Chancellor has indicated, he would wish to retain the flexibility to alter these mandatory factors; that is to say, they might he added to subtracted from or modified by statutory instrument. For myself, that appears to be entirely sensible. The basic purpose of some such provision as this is to promote consistency of practice, which, since we are talking of justice, is no doubt an aim of justice.
Lord Elwyn-Jones: My Lords, in response to the observations of the noble Lord, Lord Renton, the purpose of publishing the criteria was the hope of ensuring consistency in decision making on criminal legal aid applications. They have proved useful. But I respectfully agree with the propositions that have been made that it is clearly desirable that machinery should be available to alter the criteria if experience proves it necessary.
My noble friend Lord Morton has drawn my attention to the provision in the Legal Aid (Scotland) Act which provides that the Secretary of State may by regulations made under the section vary the factors listed, which are somewhat similar to those on my amendment, by amending factors in the list, or by adding new factors to the list. I would be content if such an addition were to be made at the next stage of proceedings. In those circumstances, on the assumption that the criteria will be included, but subject to that additional proviso, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Elwyn-Jones Lord Elwyn-Jones had given notice of his intention to move Amendment No. 43:
Page 17, line 26, leave out ("may provide") and insert ("shall provide in prescribed circumstances").
The noble and learned Lord said: My Lords, this amendment is consequential upon the previous amendment, which was withdrawn.
[Amendment No. 43 not moved.]
Clause 25 [Representation in care proceedings: scope and competent authorities]:
The Lord Chancellor The Lord Chancellor moved Amendment No. 44:
Page 21, line 27, at end insert ("to any person subject to and").
The noble and learned Lord said: My Lords, Amendment No. 44 is an amendment to which I have spoken a little time ago. It is one of the amendments consequential upon the amendment to Clause 7. I beg to move.
On Question, amendment agreed to.
The Earl of Arran: My Lords, I beg to move that further consideration on Report be adjourned.
Moved accordingly, and, on question, Motion agreed to.
House adjourned at seven minutes before ten o'clock.