HL Deb 04 February 1988 vol 492 cc1200-13

3.38 p.m.

Report received.

Clause 1 [Basic definitions and other preliminary provisions]:

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 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 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 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 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 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 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—

  1. (a) the provision of legal services;
  2. (b) the work of the courts and social conditions; and
  3. (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 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 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 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 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, 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 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.
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.