HL Deb 04 February 1988 vol 492 cc1250-73

Consideration of amendments on Report resumed on Clause 8.

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 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 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 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 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 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 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 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, 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 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 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.

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 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 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 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 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 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.

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 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 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 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 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 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 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 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.

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 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 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 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 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' 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 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 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 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 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 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—

  1. (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;
  2. (b) that the charge raises a question of law which may be in dispute and which goes to the merits of the charge;
  3. (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;
  4. 1271
  5. (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;
  6. (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 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 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 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.